Google: Net Filtering Could Affect its "Reliability, Security, and Performance"

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Kent Walker, Senior VP and General Counsel for Google Inc., warns House Subcommittee on Intellectual Property, Competition and the Internet that even if ISPs did "block domain names of [copyright infringing websites] through DNS interference, the site will remain reachable through its IP address, browser plug-in software, DNS providers, or other means."

Yesterday the House Subcommittee on Intellectual Property, Competition and the Internet gathered to hold another hearing on "Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites," and it was search engine giant Google that had the most important words of caution for legislators.

The backdrop for the hearing is, of course, the controversial Combating Online Infringement & Counterfeits Act (COICA). First proposed last September, the legislation would give the Department of Justice an "expedited process" for cracking down on websites that illegally make copyrighted material available, including the ability to "prevent the importation into the United States of goods and services offered by an Internet site dedicated to infringing activities."

A few days ago Congressmen from both the Senate and House Judiciary Committees announced a renewed effort to pass the COICA, and the hearing gave opponents and proponents a chance to weigh in on the issue.

Specifically, it was Kent Walker, Senior VP and General Counsel for Google Inc., that had the most poignant words for the Subcommittee.

Policymakers should aim squarely at the "worst-of-the-worst" foreign websites without ensnaring legitimate technologies and businesses.

Copyright holders like the MPAA and RIAA have repeated the same nonsense about "rogue sites" for some time now, and the need the need to take action against them, but Walker cautions against undue haste. He says that US law is already quite capable of handling sites subject to US jurisdiction and needs no further unnecessary "causes of action" that "overlap or are potentially inconsistent with existing law."

"Additional enforcement tools should target only those websites that are outside the reach of US legal process and whose main purpose is commercial infringement," he says.

Walker also points out that defining what constitutes a "rogue site" is not a "simple task."

"An overbroad definition of a rogue site could easily ensnare millions of popular U.S. websites that allow users to sell goods or upload content," he adds. "Websites that responsibly respond to takedown notices and comply with the DMCA should not be deemed rogue. Procedural safeguards should ensure sufficient due process to avoid

mistakes costing legitimate businesses the use of their domain name, which, for e-commerce companies, could very well mean their livelihood."

Legislation must not interfere with the health and stability of the Internet.

One of the critics of the COICA is a group of more than 96 prominent engineers whom all played critical roles in the development of the Internet. They wrote an open letter to the Senate Judiciary Committee after the COICA was first announced last September, warning that the legislation would "risk fragmenting the Internet's global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure."

Google agrees.

Walker says that using the DNS system to combat "undesired activity" like copyright infringement "must be must be carefully weighed against its limited effectiveness

and the significant implications for core American values such as innovation and freedom of expression."

"Even if service providers block domain names through DNS interference," he says "the site will remain reachable through its IP address, browser plug-in software, alternative DNS providers, or other means. But the DNS blocking itself could affect the Internet's reliability, security, and performance."

Pirate Bay co-founder Peter Sunde has already suggested the creation of an alternative P2P DNS system so that govts and private companies can no longer control it, further eroding the benefits of filtering "rogue sites."

Policymakers should dismantle barriers to licensing to encourage greater proliferation of compelling legal offerings for copyrightedworks online.

So what's the solution? Walker reiterates what consumers and even pirates alike do when asked: Increase legal alternatives.

All file-sharing is is consumers filling gaps in the marketplace that copyright holders actively refuse to fill.

Want to see a new , but it either isn't showing in a theater near where you live or you just prefer the comfort of home viewing? The MPAA creates artificial barriers, or windows, that could delay when you can see it legally by as much as 60 or even 90 days. Piracy allows you to see it much, much sooner.

When it comes to music, record labels don't seem to care that file-sharing isn't so much about free as it is about selection and availability. Want to listen to Jimi Hendrix and Jim Morrison jam together live at a gig in New York back in 1968? Try finding that one on Apple's iTunes. What about rare Motown 45s or b-side tracks?

Walker continues:

We encourage the Subcommittee to promote the creation of more innovative legitimate offerings in the marketplace that will harness the power of the Internet to compensate rightsholders. Numerous thorny issues still impede the efficient licensing of digital music—a thicket of licensing obstacles prevents consumers from buying lawful goods online and stops services from offering innovations that would benefit rightsholders and users alike. Yet, it is without question that attractive legal options for satisfying consumer demand in a timely, easy, and convenient way will reduce incentives to rely on illegal sources. Internet services are rapidly moving to cloud computing models, and policymakers should encourage content creators to embrace this technological trend at an early stage.

Copyright holders only embrace technology to the degree to which they have a comfortable level of control, and so far digital distribution has been particularly vexing because it could very well make ostensibly physical distribution channels like record labels obsolete.

When it comes down to it, the only real threat to US jobs, the thing Congressman claim the COICA will best protect, is the reluctance by US copyright holders to compete and develop the new innovative content services of the future.

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