For nearly 30 years, Silicon Valley Bank has dedicated
itself to supporting the individuals and companies who create disruptive new
technologies. We believe that strong IP
rights are essential for innovation.
The House and Senate are currently considering companion
bills – commonly referred to as SOPA and PIPA – which are designed to augment
the tools the government and copyright holders can use to combat the theft of
copyrighted materials. Protections for
copyrights and other forms of intellectual property help promote the creation and
dissemination of original works and are an important underpinning to a healthy
Yet while the bills’ goals are laudable, as currently
drafted they miss the mark in a few important respects. Overall, we believe they will negatively
affect innovation and the continued development of the Internet as a robust,
open, and continuously evolving ecosystem.
Previous legislation, such as the Digital Millennium
Copyright Act (DMCA), struck a reasonable balance between the interests of
service providers, rights holders, and everyday users. The current bills establish a new regime that
provides for, among other things, the right to shut down Web sites that display
infringing material, to filter content, and to fine and imprison infringers and
service providers who display infringing material.
Striking the right balance isn’t easy. As Congress debates this increasingly hotly-contested
issue, we think they should be guided by a few core principles:
First, any legislation should reflect the realities of how
the Internet actually works. SOPA and
PIPA would mandate Domain Name System (DNS) filtering and redirect
communications on the Internet in an effort to identify and block off
infringing sites. This could undermine current
security protocols without any positive verifiable anti-piracy impact. In fact, it could potentially expose the
general public to additional security threats.
This is similar to covering the streets with speed bumps to combat a
rash of burglaries. It may slow down the
burglars, but the brunt of the impact will be felt by people and businesses that
aren’t doing anything wrong. And it
won’t take long for the “bad guys” to find ways to maneuver around these
barriers, or move to new neighborhoods.
Second, policies should be based on facts – not
rhetoric. There’s a serious risk that
both sides in this debate will talk past one another and attempt to rely on
political strength, rather than the strength of their ideas. That won’t lead to a good outcome.
Third, legislation should protect and promote the Internet’s
continued evolution. Washington
shouldn’t dictate technological solutions, and it shouldn’t pass a law that will
undermine existing technologically-based security solutions. Washington also shouldn’t create a regime in
which legitimate parties are nominally free to innovate, but for all practical
purposes are held hostage by burdensome monitoring obligations, expensive
investigations, or costly litigation.
There are a vast number of smaller content producers, consumers, and
online service providers who use the Internet to create, disseminate and
consume new, disruptive technologies and a wide array of content from disparate
sources. The entire fabric of the
Internet could be unraveled if these parties face too much uncertainty – and
too much potential exposure – to innovate.
DCMA’s current notice and takedown scheme, and its safe harbor for
service providers, strike a better balance by distinguishing true rogue players
from inadvertent bystanders, giving much-needed certainty to the latter.
Fourth, while Congress shouldn’t dictate technological
solutions to piracy, it should create a regime that favors technological
solutions over legal remedies. We all
share an interest in combating online theft, and copyright holders can and
should be part of the solution. Legislation
should provide strong incentives for copyright holders to adopt (and
continually upgrade) the technological tools they use to distribute digital
content securely. This is particularly
true for larger copyright holders, who typically control the information they
own and provide that content over their own channels. However, legislation should not punish
channel providers and smaller content producers.
Finally, legislation should reflect the core American value
of free speech. Under SOPA and PIPA, providers
would have strong incentives to remove copyrighted material – even material that
may be subject to fair use – to avoid potentially grave consequences. In the end, overshooting the mark will lead to
less content and a less robust exchange of ideas.
We live in a world in which the way we create, disseminate
and use information is changing in dramatic ways. There’s no question: change is hard. But it has also unleashed powerful new ways
of working, communicating, and enjoying content.
We encourage Congress to approach the issue of digital theft
in a way that will not threaten innovation, stifle creativity, and undermine
people’s lawful access to online information.
It’s fine to want to get the pirates, but Congress needs to make sure it
doesn’t end up hurting those caught in the crossfire instead.