The Tortured Logic of Rep. Polis’ Anti-Porn Amendment to SOPA

WASHINGTON, D.C.—ZDNet’s Violet Blue must have been thinking about what she wanted to hear from committee members rather than what they actually said in her coverage last week of the marathon SOPA markup session by the House Judiciary Committee. We sympathize—as we share the same proclivity—but putting words into a congresswoman’s mouth is usually reserved for lobbyists and lovers, and not left-leaning San Francisco-based columnists. “Rep. Zoe Lofgren (D-Calif, San Jose) added amendments about pornography and referred to the CEO of Pink Visual (Alison Vivas) as someone she’d like to call in as an expert witness to help craft some of the SOPA regulations on pornography,” wrote Blue. “Pink Visual is known for being at the forefront of pornography and technology, with the first cloud storage for porn, the first iPad porn app, an API and more.” No argument about Pink Visual’s role as an innovator, but as far as Lofgren mentioning Vivas as a possible expert witness, it never happened, and neither did she offer an amendment on pornography. That singular task was undertaken by Rep. Jared Polis (D-Colo., pictured), whose amendment, had it not been voted down, would have exempted copyright-infringing porn sites from being targeted for takedown by the Attorney General. The amendment language read, “CERTAIN ENFORCEMENT ACTIONS PROHIBITED IN THE CASE OF OBSCENE OR PORNOGRAPHIC WORKS—The Attorney General shall bring no action, and no public resources shall be expended under this section, for the purpose of protecting any intellectual property right pertaining to a work whose contents are pornographic or obscene in nature.” Lofgren was speaking in support of the amendment when she referred to Vivas by name, saying, “I would ask unanimous consent to put in the record … Pink Visual president Allison Vivas to conduct special anti-piracy session at x-b-i-z-l-a that outlines the wide effort being made, informed by copyright experts to make pornography the top-level effort on copyright enforcement.”   On its face, the comment implies nothing. In the context of Lofgren’s preceding comments, however, it can only be interpreted as an indictment. “I read an article about the enforcement efforts by the pornography industry,” she said. “The most common enforcement action is being taken by the porn industry. They would bring action against individuals—and apparently this has been farmed out to law firms, who would then say, ‘You either pay us $1,000 or we file against you and it’s going to become public knowledge that you have been accessing pornography,’ and that most or many who are faced with that conundrum, whether or not they have actually accessed pornography, pay up because of the humiliation and embarrassment that would occur by having that become a public allegation. The enforcement underway is basically a shakedown of individuals. They have to pay up or there will be a public allegation about them.” It should be noted that Lofgren never acknowledged that the anonymous Torrent users being targeted by porn studios are alleged pirates engaging in the very activity being targeted by SOPA. One could read that to mean that for Lofgren the shame that comes with accessing porn is worse than the shame that comes from stealing copyrighted works, which, if true, is doubly ironic considering Lofgren was simultaneously expressing a desire to protect people from the alleged shame tactic being employed by law firms on behalf of porn studios. Adding fuel to that theory, Lofgren also stated, “The reason why pornography is so ubiquitous on the internet in terms of infringement ... I mean, people have a legal right to create pornographic movies, but I would guess—if you’re Mr. Smith and you’ve got your credit card, you don’t necessarily want that on [the] credit card statement your wife is opening up. So you might be led to infringing.” You really cannot make this stuff up. Goaded by an amendment that itself was supported by unsupportable ideas about piracy and porn, Lofgren’s comments reveal a profound lack of understanding about how the real world works, and a disturbing capacity to make fantasy fact in the furtherance of that day’s overarching goal: to kill the bill. Ever diplomatic, Vivas responded late yesterday to Lofgren’s actual comments, telling AVN, “It was very interesting to hear discussion of the adult industry’s anti-piracy efforts come up at the Judiciary Committee’s hearings on SOPA. While it is clear now that earlier media reports suggesting that there was interest in having me testify before Congress on this issue were mistaken, we still intend to reach out to Congresswoman Lofgren to try to establish a conversation. We believe we could offer a lot of valuable information about the adult industry's battle against piracy and that Lofgren and her fellow representatives might be surprised to learn that the industry’s anti-piracy approach is a balanced one, and that the adult industry is hurt by online copyright infringement every bit as much as other sectors of the entertainment business." We wish Vivas all the best, but suspect that an acceptance of her offer may not be forthcoming. As many have noted, the introduction by Polis of his amendment was probably intended to not only stall a vote on the bill, but also to tie SOPA supporters in knots of competing political imperatives, and as Lofgren herself noted before the vote, “I think not to support this amendment is going to be kind of hard to explain back home.” For those who assumed Polis was not serious in promoting a clearly unconstitutional amendment, and was just trying to make a larger point regarding the bill’s breadth and the amount of resources required to do its job, the truth may lie elsewhere. A Polis spokesperson told the Huffington Post yesterday, "[The amendment] makes a serious point. You're basically going to have the Justice Department policing all of this, and if we're going to be extending those resources, we shouldn't be prioritizing the property rights of pornographers over others." Of course, neither SOPA nor Polis’ amendment makes any mention of prioritizing porn, but the comment nonetheless perfectly exemplifies the twisted knots of logic brought to bear by Polis and others on the committee in their tortured efforts to explain its purpose. Polis stated, “A high percentage of internet traffic is pornography; a high percentage of piracy is pornography. Yes, Mr. Chairman, this bill would unleash the attorney general’s office to defend pornographers first and foremost! Indeed, about 10-15 internet search are for porn. An ever higher percentage of traffic is related to porn. “Frankly,” he continued, “absent this amendment the Attorney General could certainly have a field day using taxpayer resources to protect pornographers, but I don’t think that was the intent of the committee, and my amendment would clarify that while the internet may be for porn, the Attorney General’s office is not there to use taxpayers’ resources to defend porn.” In reply to Lofgren’s concern about pornographers shaking down alleged pirates, he also said, “Absent this, it is possible that an attorney general could shake people down for political, ideological or financial reasons over pornography, much of which incidentally is in violation of the terms of copyright. How much pornography is, we don’t have exact statistics, but it is quite likely that a majority of the pornography on the internet is in violation of a copyright, and this would give the attorney general and our federal government, which would be scary to many of us, the power to then enforce this against who they choose.” [Italics added]. His hyperbole continued, “I would also go so far as to explain that absent this amendment, it’s quite possible that the bulk—the bulk of the attorney general’s efforts will be to protect pornographers under this bill, because that is a large dimension of the copyright issue,” he said. “And so, again, it’s not just a question of a few incidental violators; a substantial amount of the enforcement effort absent this amendment would likely be to protect creators of pornography. We do not want to make the attorney general’s office an extension of the general counsel’s office at a large pornography company, which this bill would do absent this amendment.” Remember, that comment came from a lawmaker who also conceded during the very same debate, “It is extremely difficult to get statistics on the pornography industry, and I have read widely different accounts of the size of the industry both in terms of dollar volume and in terms of copyright infringement.” Besides Lofgren and Polis, Rep. Sheila Jackson-Lee (D - TX) also addressed the porn amendment, stating, “As someone who was here when we did many of the legislative initiatives dealing with obscenity and children on the internet, I want to be very clear that what you are suggesting is, ‘let us not use our federal tax dollars to enhance, cover and protect those who are dealing with questions of pornography and obscenity,’ which again, the Supreme Court said, I know it when I see it. And though the aspects of that dealing with children remain illegal, some things sneak through. Is that the point? Let’s not cover them with all of our resources while they’re engaged in pornography and obscenity?” In combining pornography and obscenity, which Polis did as well in his amendment, the lawmakers do disservice to the First Amendment despite their acknowledgment that people have the constitutional right to make and access legal porn. The constitution means little, however, if legislators can so easily conflate illegal and legal acts, and in doing so drag the latter down to the same level as the former. In the end, all the talk came to nothing. The amendment was defeated 18-9, with a few legislators running from the room to avoid having to go on the record one way or another The original sponsor of SOPA, Judiciary Chairman Lamar Smith (R-Texas), said of the Polis amendment immediately before the vote, “The gentleman’s amendment, intentional or not, would carve out an exemption that would make certain types of content even more widely available online. The absence of effective enforcement encourages more illegal activity, not less. Not withstanding my personal opposition to the content, we need to respect the discretion of federal law enforcement officials to bring cases they think are appropriate. For that reason, I hope my colleagues will oppose the amendment.” Other supporters of SOPA, including strange bedfellows John Conyers (D-Mich.) and Rep. Steve King (R-Iowa), have adopted the same line. “By enforcing the intellectual property rights of porn producers, King's office argued, the DOJ would be able to take down many websites that post porn illegally,” HuffPo reported. To be honest, it is enjoyable to watch politicians spin their way through any issue that has to do with porn (or the internet), knowing full well they have barely a clue what they are talking about—though, as the founder of bluemountain.com and proflowers.com, Polis is better informed than most—but the flip side of the coin is the fact that they actually have the power to pass laws that impact our lives. It’s a scary thought all the way around. In his opening comments in support of his amendment Polis drew a laugh when he joked to the committee chairman, “I’m more scared of copyright laws than anti-pornography laws.” But it’s safe to say that the porn industry should be more scared of Jared Polis than either copyright laws or anti-pornography laws. After all, with friends like him, who needs pirates? As far as SOPA itself, the continuation of the markup hearing, which was supposed to take place Wednesday, Dec. 21, has now been put off until Congress returns next year, according to a staffer for Chairman Smith by way of TechDirt. According to the post, however, Smith has been having some sadistic fun the last few days announcing the on and off again hearing, so maybe it’s best for anti-SOPA folk to hold off popping the champagne until after tomorrow, or maybe even next week!