According to Google (the world’s foremost authority on everything!), it was the great German statesman Otto Von Bismarck who first likened the process of legislation to the process of sausage making. “If you like the law, and you like sausages, you should never watch either one being made,” Bismarck supposedly said.
And now, having spent the better part of two days running around the Exalted Halls of the United States Congress, I think I know exactly what he meant.
The purpose of this week’s guerrilla strike on the Nation’s Capital was to talk with the legislative assistants of numerous Congressmen and women about recently introduced legislation intended to deal with the the legacy music and film industries’ decade-old preoccupation with the dreaded bogey man known as “online piracy.”
The junket was arranged by Public Knowledge, a “public-interest advocacy organization dedicated to fortifying and defending a vibrant information commons.” In other words, an advocate for keeping the Internets open and functioning more or less freely. Public Knowledge is among the agencies and organizations that have taken a leading roll in opposing the proposed legislation, and I and some colleagues were invited to come to Washington to help make their case.
The actual invitation to make the trip came from Alex Curtis, a staff attorney for Public Knowledge who has been in Nashville for the past year helping the next generation of “content providers” navigate the shifting currents of the new digital frontier under the aegis of the “Creators Freedom Project.” For the past several months, Alex has been acting as consultant of sorts re: the social marketing of “The 1861 Project,” so when he asked if I’d make the trip with him, I was more than ready to go.
Along with Alex, I flew to Washington with singer/songwriter and digital music marketing guru Charles Alexander, another songwriter, musician and web developer, Michael Lovett, and Nick Hardy, the manager of a group called Parachute Musical that is another Creators Freedom case study. Once we arrived in Washington, we were met by Libby Koch, another singer/songwriter from Houston. As we learned when we were handed the agenda for the following two ways, our hosts had aptly dubbed the expedition the “Musician’s Fly-In.”
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The first thing you need to know about the sausage factory in Washington is that each of the two houses in Congress – that would be the Senate and the House of Representatives – drafts its own version of a bill. And — as one of the staffers we spoke with said quite matter-of-factly — almost “all legislation is introduced at the behest of some industry or special interest group.” And, often the first draft is actually written by somebody representing that industry or special interest. I feigned shock at this news. My attempt at a joke was completely lost on the staffer.
So it should come as no surprise that the “online piracy” legislation now being considered was drafted by operatives working on behalf of the “content” industry – principally, in this case, by representatives of the RIAA, the MPAA and their ilk, with an assist from big-name brands like Louis Vitton or Gucci whose products are frequently counterfeited and sold from what the bills would designate as “rogue websites.” The intent of the legislation is to give the Department of Justice – acting at the behest of private companies who feel their intellectual property is being infringed – the power to “delist” those “rogue websites” – i.e. just remove their domains from the web.
Whether or not that action will achieve the intended effect — i.e. curtailing piracy — is the subject of the debate that our little delegation walked into the middle of. The critics of the legislation assert that the delisting procedure will apply only to domestic registries, so the domains will persist on foreign servers. And they would still be locatable just by using the actual numeric IP address. The result is not so much the elimination infringing content but a bifurcated Internet: instead of a single, unified world wide web, you wind up with a universe of domains that work in one jurisdiction, and not in another. Sorta like the way it works in China. Or Iran. Or North Korea.
And then there is the issue of “collateral damage” (as one staffer put it): There is the genuine possibility that the legislation as it is currently written would permit the delisting of entire domains, even if it was just one account within a domain that was believed to be infringing on somebody’s IP. As the legislation is currently construed, It’s fathomable that one piece of infringing material could go up on a site like Soundcloud, and the entire domain could disappear.
Then there are the issues of due process, all of which are pretty fuzzy in both bills.
And so off to Washington we go, we band of happy indie artists, to implore our Senators and Representatives to take a closer look at the proposed legislation.
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The actual bills have emerged with colorful nomenclature. In this age of branding and soundbites, the House and the Senate try to outdo each with clever names that lend themselves to even more clever acronyms. The Senate was up first with S.B. 968, dubbed the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property,” rendering the acronym “PROTECT IP.”
Not to be outdone by the wordsmiths in the Senate, the House last month came up with its own version, HR 2361, originally entitled the “Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation” act, which renders the tasty acronym “E-PARASITE.” Apparently somebody in the House had a moment of clarity and renamed the bill, “Stopping Online Piracy Act,” aka “SOPA.
Score one for the Senate.
So we have two versions of the legislation to contend with, one for each house of Congress, but both drafted by or at the behest of the content providers, to protect their intellectual property from the diabolical ruin of online piracy. Consequently, the entire debate has been framed as a smackdown between the “content” industries – the legacy entertainment companies like those represented by the MPAA and the RIAA – and the “tech” interests like Google, Apple, Facebook, Amazon, etc. It should come as no surprise that those “content” interests are desperate to get Congress to enact this legislation immediately — or that the “tech” interests hate it.
Thus our little delegation found itself in an interesting position. Coming as we were on behalf of the Creators Freedom Project, we could represent the neglected interests of independent artist-types who rely on the Internets to build their business, who would be severely disadvantaged if domains like Soundcloud could be summarily and capriciously taken offline.
After a quick cab ride from the airport, our first stop was a grey glass and concrete edifice near K Street that housed the colorful offices of a little Internet company called “Google.” You’ve probably heard of it, it’s company world renown for its outstanding cuisine (among other things), and that’s why we there – to have lunch.
It’s not entirely clear why a Silicon Valley based company like Google would have an office in Washington DC. No, wait, it’s abundantly clear: the office is mostly there to monitor ‘policy’ – in other words, to lobby Congress on behalf of the special interest known as “Google.”
So while we were feasting on gourmet chipotle creamed chicken, we sat down with one attorney for Google, and another operative for a lobbying firm that Google employs, and we had a wide ranging discussion about the legislation and what sort of feedback and/or pushback we would likely encounter once we got up on “the hill.”
As the conversation proceeded, it became clear that our group brought a unique perspective to the debate, a useful counterpoint to what the staffers were already — or would soon be — hearing from others witnesses.
We knew they’d be getting an earful from organizations and agencies like NSAI and the Songwriters Guild, which testaments would profess to represent the interests of creative-types in support of the proposed legislation. So we got to say “now you will hear from some creative-types who do NOT share that enthusiasm for these proposals.”
Over the course of more than a dozen meetings, I think we succeeded in making the point that we also represented content creators, and that while we share the legacy content creators’ concerns about piracy, we are more concerned about the ultimate impact this legislation is going to have on creative businesses that rely on a freely flowing Internet for their day to day operations.
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It would not be prudent to go into the details of our actual conversations, so here are some general highlights:
— We were warmly received by the offices of all four Senators from Tennessee and Texas (the states were all the members of our delegation reside) and while all were not entirely sympathetic to our objections, they listened to our concerns and either offered to bring them to the attention of “the boss” or take a closer look at the draft legislation.
— We also met with staff members for the House reps from the districts from Middle Tennessee as well as several other states, including Utah, California, and North Carolina. As with the Senate staffers, the responses were respectful if not entirely persuaded.
— The age and experience, and technical knowledge of the staffers ranged widely, from those in their mid-late twenties to some “lifers” in their forties. Several of the younger staffers demonstrated a firm grip on the technology – like the 30-something who told us how much he loves Spotify. And then there was the young man who heard an acronym go by and stopped us and said, “what’s ‘D-I-Y”?
— A lot of the staffers started taking notes as soon as we started talking. None were still taking notes when the conversations ended; they stopped taking notes about 10 or 15 minutes into meetings that typically lasted about 45 minutes.
— A lot of the staffers we talked to were really not up to speed on the bills. They listened to our concerns and said they’d “take another look.” Or if they were familiar with the bills, they expressed surprise when we described the provisions that could cause problems.
— Then there was the staffer for a prominent Representative from California who sat down with a copy of the entire SOPA bill that had notations on every page and several tabs throughout the document. According to my own notes, he’s the one who described the bill as a “blunt instrument” when maybe something more precise and surgical could do the job.
— We only met with one actual representative and that was by accident. We were in the office of the genial octogenarian Republican from North Carolina Howard Coble, when Representative Coble himself returned from a committee meeting. We sat with him for about ten minutes and talked mostly about whether Marty Stuart prefers to play the guitar or mandolin. He was very proud of the hand-written copy of the lyrics to “Country Bumpkin” that hangs on his office wall, and knows that Chester Atkins middle name is “Burton,” not “Arthur.”
— Of the fourteen Congressmen and women whose staffers we met, for some reason only three were Democrats. Nevertheless, the Republican attitude toward the legislation is well divided. Some were clearly pre-sold on the bill, but several shared our concerns, and promised to share them with “my boss.” It was never Senator or Congressman Whoever, it was always “my boss.”
— Don’t anybody tell Roger Ailes, but nearly every Republican office we ventured into had Fox News on the TV.
–In the fourteen offices we visited over two days, every computer we saw was a Windows PC. There are no Macs on Capitol Hill. Draw you own conclusions.
–A couple of the meetings we had were tough. The staffers took issue with our reservations, expressing doubts that the provisions of the bill are as onerous as we tried to describe them.
— Our final meeting was with the Legislative Director for a House Judiciary Committee member who began the discussion by telling us that his boss refered to the House bill by the Swedish translation of the acronym “SOPA.” Apparently “SOPA” translates into something akin to “garbage.” As soon as he said that we figured our work there was done, but we stuck around for another half hour or so before heading off to the airport and our flight back to Nashville.
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So that’s pretty much our Washington adventure.
It’s hard to come away from an experience like this and not have at least a measure of renewed faith in the essential process.
Personally, I have been a student of American history for the past decade or so, starting with an interest in the writings of Thomas Jefferson and culminating recently in this musical project about the Civil War. After all that interest, to return to the city and the places that exemplify all that that history represents was genuinely moving.
Late Wednesday afternoon, in the midst of a beautiful cloudless autumn day, Michael Lovett and I (along with our Google tour guide) walked the boulevard in front of the east front of The Capitol building, as we raced from the Senate office buildings to the House side. The vast edifice of the gleaming domed Capitol spread out on one side of us, as we walked past the colonnades of the Supreme Court and the Library of Congress on the other side. Regardless of the outcome of this legislation, or your political leanings, if you can’t feel at least some measure of pride or appreciation for the process in a moment like, it’s time to check your pulse. Just the fact that we could fly in, get off the plane, and be welcome within the halls of our Government has to count for something.
And as much as law making may have in common with sausage making, it is also not hard to come away with an appreciation for the magnitude of the task that confronts these people every day: to have to absorb the subtle minutia of hundreds of bills every year, covering an unimaginable range of subjects; to have to master those subjects quickly, convey them to “the boss,” and hope that enough information has filtered its way up to its intended destination that “the boss” can make a wise and informed decision. And that’s not even taking into account the political horse-trading that ultimately takes place before anything comes up for an actual vote on the floor of either house.
As for the topic at hand, well, it’s hard to tell how it’s going to shake out. A couple of staffers told us that there is rare “bi-partisan support” for this legislation, the implication being that both sides of the aisle want to pass something if just to make it look like Congress can actually pass anything. So if I had to venture a guess, I’d say some modified form of these bills are going to find their way out of Congress and land on the President’s desk. As one staffer put it, probably before the election next year.
And in a way, I hope that something does happen. As much as I think that the whole issue of “piracy” is a red herring, I’d like to see it dealt with in a meaningful and effective way.
I sorta wish that somebody would come up with a magic bullet that would indeed, “stop online piracy” once and for all. Because if that day ever does come, the content providers who support legislation like this would wake up the next day, and seeing that draconian measures have failed to set the clock back to 1994, are finally going to have to say to themselves… “uh oh… that’s not it…”
Then they’ll have to find a new way to manufacture their sausage.
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