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Editorial: Stealing the Show

Even given the ubiquity of lobbying, it’s rare when there’s as much of it before a hearing as there was last week in advance of the House Judiciary Committee vetting of the Stop Online Piracy Act (SOPA).

And it doesn’t seem like there ought to be a lot of debate over whether the government should try to stop online piracy, from bogus prescription drugs to stolen copies of movies and TV shows and CDs. To borrow from last week’s episode of NPR’s Wait, Wait, Don’t Tell Me, back in the day, stealing entertainment media meant wearing a puffy coat into your local Sam Goody’s. Now it can be as easy as a few clicks from the comfort of your own room. Thus the government’s idea to make it uncomfortable, wherever it happens.

But there has been debate, or at least major pushback, from consumer electronics companies, fair use fans and Web powerhouses like Google and Yahoo! and eBay. Their argument, now focused on SOPA but also on the Senate Protect IP Act, is that the bills are overbroad, give the government too much power and could criminalize fair uses of copyrighted content or sweep up legitimate businesses.

Their concerns about due process are understandable, and we agree that folks who unintentionally distribute copyrighted content, or put it to a protected secondary use like comment or excerpting it as part of the creation of a new work, should be protected.

Legitimate sites should also not be subject to potentially business-destroying takedowns on suspicion alone.

That said, we think the Stop Online Piracy Act contains those due process protections, and we agree with the head of the U.S. Copyright Office that if it will assuage some concerns to make the protections of innocent actors more explicit, then the bill can be tweaked to do so.

Backers of the bill are right that there is too much at stake not to push forward with some version of it. Maria Pallante, register of copyrights and head of the office, put an exclamation point on those efforts in her testimony before that Senate hearing last week. Pallante said that unless Congress continues to take serious steps to combat online piracy—read: the proposed SOPA— the U.S. copyright system cannot be sustained.

“I would like to be very clear at the outset,” Pallante said in her testimony, addressed to committee chairman Lamar Smith (R-Texas). “It is my view that if Congress does not continue to provide serious responses to online piracy, the U.S. copyright system will ultimately fail.” Pallante was preaching to the choir since Smith sponsored the bill, which would give industry and government more tools to pursue and potentially shut down sites they believe are trading in pirated content, including TV shows and movies.

But this bill is not only about TV shows and movies, which are important enough when it is your job that is threatened. According to a Phizer executive, it is also about preventing rogue prescription drug sites from peddling medicines that could contain heavy metals, arsenic, pesticides, rat poison, brick dust, floor wax, Sheetrock, leaded highway paint and wallboard.

It is also about trying to stem what some stats suggest is the 25% of all global Web traffic that includes infringing content.

Given the tenor of last week’s hearing, opponents of the bill may have overplayed their hand in painting it as a potential destroyer of the Internet. Democrats and Republicans alike said such rhetorical extremes did nothing to help the debate.

What will help, short of locking everyone in a room and throwing away the keys—and the smartphones—is for both sides to acknowledge that the status quo is untenable. At least they would be starting from the same point.

The bill is not immutable, and whatever tweaks need to be made to assure tech companies that there are sufficient due process protections should be made. A Google exec last week said the company was ready to work with Congress on changes to the bill, but also seemed unwilling to move off its “follow the money” approach, which is to try to cut off ad money and payments to rogue sites.

But any legislative response that does not include search engines and ISPs in the solution is like trying to fight pirates with one hand—and arguably the strongest one—tied behind your back.