Rogue Sites Legislation: Enter the Amendments for the 1% (Part 1)

We are now entering the amendment phase of the rogue sites legislation–which means that those who oppose protecting the public health and American artists and the jobs they create have finally decided they can’t just say no.  Now they will try to amend to death that which they can’t othewise kill.  See also Part 2: If Google is For It, You Know Artists are Getting Robbed and Part 3, Would You Rather Just Be Waterboarded Now?

Rogue Sites—what’s the problem?

There has been quite a bit of discussion about “rogue sites” legislation in the Congress.  Thanks to Chairmen Leahy and Smith, the Congress is trying to address the rogue sites problem, but what is it?  If you are encountering it for the first time, you may not know what rogue sites are all about.

It is actually quite simple in scope:  Foreign website operators–rogue sites–who sell all manner of illegal goods (including counterfeit drugs) into the United States using the Internet, while the rogue operator is safely outside the jurisdiction of U.S. law enforcement.

The rogue site uses U.S. based credit card companies to fulfill the sales and U.S. based adserving companies (like Google Adsense) serve advertising to the rogue site and pay the operator a share of the profits.

U.S. based search companies (like Google) drive traffic to these rogue sites through search.

What’s the problem, you say?  Why don’t these U.S. companies just stop doing these bad things?  Some, like Godaddy and Mastercard, AT&T and many others are policing their networks voluntarily and would like to do more.

The others?  Well, they would be happy to, once you get a final nonappealable judgment from the highest court on a case by case basis for each pill, movie, song or book.

Because, you see, that’s the only way they would know if there were a problem.  And now…back to counting their money for their next all-cash acquisition.  Or perhaps a Ferrari or a pair of (real) Christian Louboutin shoes.

Winning the Web and the Rogue Sites Legislation

There has quite a bit of coverage about lobbying against the rogue sites legislation in the Congress.  The alliance of anti-copyright groups we have long dealt with are on display once again.

The tactics of the anti-copyright crowd are best demonstrated in Winning the Web, an organizers manual for the anti-copyright movement sponsored by the Open Society Institute and written by an organizer of the UK group ORG, the UK based second cousin to the Electronic Frontier Foundation (see Stop 43).  A telling admission in that book is the following (at page 11):

“If [staying on message] means centring messaging on the IP mechanism itself, then is it easier, or harder, to find messaging that is suitably emotional as to appeal to the grassroots? Not all countries have a cultural history like Brazil’s which can easily accommodate the “remix” message. And as the ORG campaign suggests, campaigners are often faced with simple, instinctually appealing messages from the other side (“artists need to get paid”) that are difficult to beat with a focus on the IP mechanism.”

You will notice that opponents of rogue sites legislation in the US are fully aware of the need to shift the attention away from artist rights and onto something else that “is suitably emotional as to appeal to the grassroots”.  What might that be?

Again from Winning the Web, page 11 (emphasis added):

“Should IP reformists [sic] accept that the consumer rights agenda is the most appropriate home for their concerns, or is there room for IP-centred messaging that calls for action from citizens, and not consumers, that finds its home in the civil rights movement?”

So these “campaigners” and “reformists” are suggesting that their anti-copyright campaign should try to capture the “meme” of a noble campaign for fundamental rights to avoid having to deal honestly with the destruction they bring down on professional artists and members of the creative guilds and unions supporting the U.S. rogue sites legislation such as the Directors Guild of America, .AFTRA, AFM, SAG, IA, and the AFL-CIO.

It should come as no surprise then, that we have seen this turn toward the absurd argument that rogue sites legislation is about “censorship” and the “Great Firewall of America”.  These messages are straight out of the Winning the Web playbook.

What is surprising, though, is how the anti-copyright crowd has managed to completely ignore the most palpable example of the need for rogue sites legislation as a matter of public health.  Because in the case of the rogue sites legislation, it’s not just the artists and workers in the creative community whose jobs are at stake, it is the public health that is at stake.

And guess who has the most to gain by deflecting attention away from that problem and onto “Hollywood”?

Google’s Drug Sales Sting Operations and How Eric Schmidt and Larry Page Avoided Being Indicted

Winning the Web (the OSI anti-copyright organizing manual) advises readers to get close to corporate government relations executives:  “government relations officers of major corporations [are] good sources of information.”  Now which corporations do you think that might be?

Google has been widely identified as being at the forefront of opposition to rogue sites legislation. This is, no doubt, because “rogue sites” would allow the government to stop the sale of advertising on the many varieties of rogue sites—not just sites like Megavideo that sit in Hong Kong and pay users to upload and distribute illegal copies of thousands of movies.

Rogue sites include sites that sell counterfeit drugs to unknowing consumers and also sell authentic drugs with no prescription (or a very flimsy prescription).  In short, sites that profit from desperation or addiction—human misery.

A far as I can tell, Joseph A. Califano, Jr. (former Health and Human Services Secretary in the Carter Administration and currently Chairman and President of CASA, the National Center for Addiction and Substance Abuse at Columbia University) coined the term “rogue sites”.  In a letter to Eric Schmidt in 2008, Secretary Califano implored Google to do something about the indiscriminate sale of drugs on the Internet promoted through the sale of advertising by Google (among others):

“ This year, CASA found that 85 percent of Web sites selling these drugs do not require a legitimate prescription, and there are no controls blocking the sale of these drugs to children….CASA was able to find prominent displays of ads for rogue Internet pharmacies in a Google search for controlled drugs included in our analysis. This suggests that Google is profiting from advertisements for illegal sales of controlled prescription drugs online.”

Google ignored this letter.

Earlier this year–three years later–Google entered into a nonprosecution agreement with the U.S. Department of Justice to avoid being indicted for charges arising out of seven different sting operations conducted over eight years by the government’s prosecutors.  The conclusions of the multiple criminal investigations (and one assumes a grand jury investigation) was that Google was doing exactly what Secretary Califano suggested.

“Profiting from advertisements for illegal sale of controlled prescription drugs online.”

Google apparently thought so, too, because the company’s board authorized the payment of $500,000,000 of the stockholders’ money to keep the senior management of the company from being indicted.  So much so that on the advice of counsel, Eric Schmidt refused to answer certain questions on the matter under oath while testifying in front of the U.S. Senate Antitrust Subcommittee–although he did curiously admit that the drug advertising sales were made with his knowledge.

$500,000,000 of the stockholders’ money.  Half a billion.  And you can still go to Google right now and search for “buy oxycontin online no prescription” and Google’s Autocomplete will suggest you also might be interested in “buy oxycontin online no prescription cheap”.

So let’s be clear about what’s going on here—Google wants to keep selling advertising on rogue sites, Google probably knows that they only get to buy their way out of a felony drug prosecution once, and they are making untold billions of dollars from doing all of the above.

It’s not about civil rights, as the OSI manual suggests.  It’s not about censorship, it’s not about due process.

It’s about money.

As usual.

Next in Part 2: If Google is For It, You Know Professional Artists Are Being Robbed