Cary Sherman, CEO of the Recording Industry Association of America, is a sharp guy with degrees from Cornell and Harvard Law. When we've spoken in the past, Sherman has shown a keen grasp of the issues. But as head of a major trade group and lobbying association, Sherman is not above hand-waving demagoguery, a trait on full display in yesterday's strangely angry New York Times op-ed.

In it, Sherman throws down the gauntlet. Not interested in playing the "humble" card, Sherman apparently believes he's going to get better results in his quest to revive something like the Stop Online Piracy Act (SOPA) by resorting to rank insults. He follows the line of attack carved out by MPAA boss Chris Dodd, who last month called the anti-SOPA Internet blackout "an irresponsible response," "an abuse of power," "a dangerous and troubling development," and a "gimmick."

The MPAA and RIAA reaction to the groundswell of popular opinion will probably be studied in communications textbooks for years to come as "what were they thinking?" case studies. For now, though, it's just baffling on a practical level. This is going to get tech companies and the public on board with tougher copyright enforcement? Good luck with that.

Let's run down the editorial's main points.

Anti-democratic power-abusers



"The digital tsunami that swept over the Capitol last month... raised questions about how the democratic process functions in the digital age."

That's right, hearing from millions of unhappy citizens is what raises questions about democracy—not having bills drafted in secret after consultation with only certain stakeholders.

Lawmakers "studied the [piracy] problem in all its dimensions, through multiple hearings."

In the House, SOPA had a single hearing, a grotesquely one-sided affair in which Google was the only voice in opposition and in which committee chairman Lamar Smith (R-TX) made it only paragraphs into his opening remarks before blasting Google repeatedly. In the Senate, PIPA had... no hearings. It's true that an earlier bill called COICA did receive a few hearings in the House and Senate, though they were hardly "comprehensive" (and, in any event, COICA wasn't the same as its successors).

The idea that Congress really sat down and hashed this all out is absurd; even in the final SOPA hearing, members of Congress admitted they didn't understand the technical implications of some of their proposals and said that experts should be consulted.

Misinformation may be a dirty trick, but it works. Consider, for example, the claim that SOPA and PIPA were “censorship,” a loaded and inflammatory term designed to evoke images of crackdowns on pro-democracy Web sites by China or Iran. Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal? When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is?

When a "thorough review of the evidence" really means "some federal judge anywhere in the US who has secretly heard from only side in the dispute," you can see just how quickly this whole point goes off the rails. Yes, such procedures are used to target assets in drug cases, etc, but websites aren't a pile of cocaine; most involve at least some speech, and the issues around copyright are far murkier than those around something like narcotics.

Case in point: as Sherman knows, the US government went to a judge and took down the domain name of dajaz1.com, a hip-hop blog, kept it for a year, made it difficult for the site owner to find out anything about the case, and eventually released it back to him without explanation. If this is already happening, imagine the problems if this approach is expanded to private actors like the RIAA.

And the issues get murkier once you get into things like "linking sites" and cyberlockers.

As for comparisons to China, they're certainly valid; rightsholders even use them. As the MPAA's Chris Dodd told Variety in December, "When the Chinese told Google that they had to block sites or they couldn't do [business] in their country, they managed to figure out how to block sites." Government-mandated site blocking would be a crucial new step in the US (even child porn is blocked only voluntarily here).

Wikipedia, Google and others manufactured controversy by unfairly equating SOPA with censorship.

This is just so patronizing that it's almost more offensive than what comes next. While lawmakers may have heard the public roar loudest only after Wikipedia and Google raised the anti-SOPA banner, the reaction has been loud and angry in the blogosphere for months. Yet SOPA supporters routinely insist it's all about Google. Indeed, reddit helped start the blackout rolling last month; Wikipedia and Google were latecomers to the party. When Ars Technica altered our site theme for the day and devoted it to SOPA and PIPA education and analysis, Google had nothing to do with it.

When you live and work within a corporatist lens, it can be tough to see anything else—and it's clear that SOPA supporters want to make this a "battle of self-interested parties" rather than admit to the new worldwide anger at the always-increasing copyright ratchet.

The hyperbolic mistruths, presented on the home pages of some of the world’s most popular Web sites, amounted to an abuse of trust and a misuse of power. When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading, they are duping their users into accepting as truth what are merely self-serving political declarations. As it happens, the television networks that actively supported SOPA and PIPA didn’t take advantage of their broadcast credibility to press their case. That’s partly because “old media” draws a line between “news” and “editorial.” Apparently, Wikipedia and Google don’t recognize the ethical boundary between the neutral reporting of information and the presentation of editorial opinion as fact.

Yes, if only major media organizations had some way of getting their message out, like forcing everyone in a movie theater to watch as the horrors of piracy put an electrician out of work. If only they could convince the FBI to create a special antipiracy seal that they could affix to every CD and DVD, and which they could make an unskippable prequel to every DVD and Blu-ray (the seal is currently authorized for use by the MPAA, RIAA, and three software trade groups). If only they could write their own curriculum for use in schools!

If the issue here isn't "reach" but "misinformation," then there's really little to say. This is coming from the industry that was convinced that "Home taping is killing music" and that has spouted ludicrous statistics on piracy's economic costs for years. (To say nothing of MPAA hyperbole comparing the VCR to the "Boston Strangler" and much else, including badly flawed studies.)

As for "news" versus "editorial," it's not even clear what this means. Google doesn't provide its own "news" to people, and Wikipedia threw up a separate roadblock page that quite clearly indicated the anti-SOPA material was not standard Wikipedia content.

The violation of neutrality is a patent hypocrisy: these companies have long argued that Internet service providers (telecommunications and cable companies) had to be regulated under the doctrine of “net neutrality” because of their power as owners of the Internet pipes. But what the Google and Wikipedia blackout showed is that it’s the platforms that exercise the real power. Get enough of them to espouse Silicon Valley’s perspective, and tens of millions of Americans will get a one-sided view of whatever the issue may be, drowning out the other side.

This latter bit must be some of the most self-pitying malarkey I've heard this year—and I have three young children. Yes, the "other side" is so drowned out that they only got exactly the bills they wanted from Congress—how disenfranchised!

As for net neutrality, the point being made here (such as it is) amounts to a mere diversion. Google's Web services and Wikipedia have reach and power, but they don't sit between end users and everything else on the Internet the way a local ISP does. Whatever you think of the idea, "owning the pipes" was the point of net neutrality, not something incidental to it.

Would they have cast their clicks if they knew they were supporting foreign criminals selling counterfeit pharmaceuticals to Americans?

You can't see it, but I am currently hanging my head in shame that this is the level of debate we have been reduced to. "Supporting" foreign criminals? This low rhetorical trick doesn't deserve a response (though it will appear especially ironic in light of the editorial's conclusion; see below).

How many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation? Indeed, it’s hackers like the group Anonymous that engage in real censorship when they stifle the speech of those with whom they disagree.

Yes, how many of them were from the same people? The looks more like accusation by insinuation than anything resembling "evidence."

Anyway, this has long been a blind spot for Anonymous. They appear to believe that their options for protest are limited, and that DDoS attacks are one of the few reasonable ways to vent displeasure, but Sherman is on solid ground with his point about free speech.

But it's not related to the topic. What does the attack on various websites have to do with the SOPA opposition? It was not encouraged or hinted at by the companies Sherman so loathes, and it wasn't even done in response to SOPA.

Perhaps this is naïve, but I’d like to believe that the companies that opposed SOPA and PIPA will now feel some responsibility to help come up with constructive alternatives.

Sherman naïve? Hardly. In fact, this is brazen. SOPA and PIPA weren't drafted with other people's concerns in mind; the call for dialogue and constructive alternatives came only after an attempt to whack the Internet's collective head with a two-by-four. Had this all been done in good faith from the start, one suspects a bill might have been possible. As it stands now, the fear and suspicion on both sides are probably too great.

It has become clear that, at this point, neither SOPA, PIPA nor OPEN is a viable answer. We need to take a step back to seek fresh ideas and new approaches.... We all share the goal of a safe and legal Internet. We need reason, not rhetoric, in discussing how to achieve it.

Imagine that you have a friend who wants to clean the public golf course of chipmunks by dumping rat poison by the bucketful from helicopters. You think this is a... misguided idea. But the friend has the ear of the town council and convinces one member to introduce a bill mandating mass quantities of arsenic to be dumped on the golf course. You show up to a hearing and suggest the poison could cause other problems. The friend then goes to a local newspaper and for months trashes your good name, suggesting that you are a dishonest scumbag who furthermore likes the golf course chipmunks and probably profits from them by selling them to research labs by the minivan load. For what it's worth, the friend suggests that you also support killing the town's seniors with tainted heart medication imported from abroad.

When the town rises up to reject the rat poison bill and suggests that, perhaps, some less barmy idea might work, your friend then repeats all his old allegations while throwing in new ones about "abuse of power." But when defeat is clear, your friend calls you up on Saturday afternoon and expresses his thanks that you agree the golf course has a chipmunk problem. He hopes you can both sit down and work out a rational compromise—though not one that starts from your own idea, which was simply to employ a full-time golf course cat.

"We are rational beings," he says, "are we not?" You agree with him because that's the sort of polite person you are, but in reality you harbor doubts; wasn't this the guy with the nutball rat poison idea who spent months calling you names? And didn't he get you so furious that you sometimes lost the grip on your own steely logic?

Rationality, you think to yourself as you hang up the phone, might have been possible once—but it's going to be tough to find now.