Post-SOPA: the path forward for addressing piracy

[Commentary] Can we do anything meaningful about piracy without resorting to new private rights of action or to DNS blocking and search engine blackouts? We can. Though we certainly don't speak for anyone beyond ourselves, we believe that legislation drafted along the general lines sketched below could work—and could generate (some) agreement on an emotional issue.

• Involve all stakeholders: By "involve all stakeholders," we don't mean what Washington usually means: put multiple behemoth corporations in a room to work out a deal. The public has a serious stake in Internet issues and needs meaningful participation.
• Open drafting: We need to work on principles in public, then move towards legislation, not introduce maximalist legislation and make small concessions.
• Hold real hearings: Piracy issues have been present for years, and legislative solutions will affect us for years. Let's hear from thoughtful people for a while and work to get it right.
• Separate the key issues: Too often, the issues driving SOPA and PIPA are conflated. When backers want to scare people economically, they talk copyright infringement and use industry numbers. When they want to scare people on health and safety, they tout online pharmaceuticals that can turn your foot orange and counterfeit parts that could make your airplane crash in a fiery death spiral. These are not the same thing. Let's deal with them separately so that we accurately match penalties to threats.
• Adversarial process: We'd like to see non-adversarial hearings reduced to an absolute minimum, especially in cases where the resulting penalties may be severe. Once judges have heard everyone and ruled after some deliberation, we have no problem with targeted action being taken against site operators who are truly violating the law.
• Better definitions of "rogue" and "foreign"
• Limited non-judicial remedies
• Keep strong intermediary immunity
• Follow the money: As for those enforcement measures, let's follow the money. Cutting off the funding to sites, by going after customer payments and ad network money, should force most bad actors to wither on the vine.
• Escalation
• International buy-in