“[Sohn] is a radical open-content activist with no respect for intellectual property rights. As an activist, Ms. Sohn has consistently worked against commonsense measures that would crack down on illegal piracy.” – Senator Tillis letter to President Biden
On November 30, Senator Thom Tillis (R-NC) wrote a letter addressed to President Joe Biden asking Biden to withdraw the nomination of Gigi Sohn, a co-founder of the open Internet advocacy group Public Knowledge, to serve as a commissioner with the Federal Communications Commission (FCC). Tillis is one of a growing number of Republican lawmakers who are speaking out strongly against Biden’s nomination of Sohn, who previously served as a senior staffer to former FCC Chairman Tom Wheeler during the Obama Administration.
Tillis’ letter to President Biden certainly pulls no punches in assessing the likely impact of Sohn’s nomination on copyright owners especially. “[Sohn] is a radical open-content activist with no respect for intellectual property rights,” Tillis wrote. “As an activist, Ms. Sohn has consistently worked against commonsense measures that would crack down on illegal piracy. She has even testified before Congress that ‘piracy has absolutely no effect on [music] prices whatsoever.’”
Tillis, Graham, Wicker Part of Growing Chorus Against Sohn’s Nomination
Along with focusing on Sohn’s time as a staffer for Tom Wheeler at the FCC, during which time she was actively involved in efforts to support net neutrality and open set-top boxes from proprietary controls, Tillis noted that Sohn has recently served on the board of directors for the streaming TV service, Locast. In early September, U.S. District Judge Louis Stanton of the Southern District of New York ruled that Locast was not a nonprofit exempt from copyright liability for retransmissions of TV broadcasts to subscribers online. Soon after that ruling, Locast shuttered its operations. “Ms. Sohn… likely profited from this copyright piracy and intellectual property theft,” Tillis wrote. He added that Sohn’s likely impact on the FCC would be deleterious to 87% of film and television companies that employ less than 10 people, despite Sohn’s insistence that only large media corporations are hurt by anti-copyright activism.
Tillis is one of many Republican voices on Capitol Hill who have taken umbrage at President Biden’s selection of Sohn to complete the board of commissioners at the FCC and break the current 2-2 Republican/Democrat deadlock of commissioners at the agency. A Twitter post earlier this month on the official account for Senator Lindsey Graham (R-SC) indicated Graham’s feelings that Sohn is an “unqualified nominee and hack,” “a complete political ideologue who has disdain for conservatives” and he vowed that he would push back against Sohn’s nomination. A Politico article published on November 1 quoted concerns over Sohn’s nomination from Senators John Thune (R-SD) and Roger Wicker (R-MS), both of whom were also pessimistic on Sohn’s likely impacts on the FCC based on her past activism on copyright and net neutrality issues.
Sohn on FCC Likely Indicates Return to Obama-Era Net Neutrality Debate
While not an intellectual property issue per se, the debate over net neutrality during the mid-2010s played out along similar lines to the patent reform debate by favoring the interests of major corporations over small businesses. While many net neutrality advocates portrayed the FCC’s Open Internet Order as a necessary measure for ensuring that monopolistic Internet service providers (ISPs) could not exploit consumers who need Internet access, net neutrality received very public support from Netflix, Facebook and other media and Internet companies with subscriber bases that dwarf most ISPs and who benefitted from the inability of ISPs to charge extra for more bandwidth use. At a time when the United States should have instead been supporting increased broadband infrastructure for rural and impoverished communities across the country, the Open Internet Order instead had the effect of reducing capital expenditures for broadband infrastructure among all ISPs, slowing Internet access among the communities that need it the most to join the Internet age. Sohn’s return to the FCC as a commissioner would likely breathe new life into a net neutrality enforcement campaign during the Biden Administration.
Sohn’s Public Knowledge policy institute has also advocated for copyright reforms in a way that mirrors much of the discussion around patent reform, which had sought to improve “quality” and promote “balance” in ways that have tipped the scales entirely in favor of efficient infringers. Public Knowledge’s copyright page pays lip service to the importance of copyright but is clear on the organization’s belief that “too much copyright restriction can actually hurt innovation.” Public Knowledge was pessimistic regarding the impacts of the U.S. Copyright Office’s May 2020 study on Section 512 of the Digital Millennium Copyright Act (DMCA), which had only advocated for minor changes to safe harbor provisions that had come to immunize online platforms from copyright liability more than originally intended. Public Knowledge spoke out against a draft DMCA modernization bill from Senator Tillis that incorporated recommendations from the Section 512 study, calling the bill a “radical overhaul” that would “significantly curtail online speech.” Public Knowledge even raised concerns about the Copyright Claims Board, created by the CASE Act in late 2020, as an “unaccountable ‘small-claims’ court” despite the fact that defendants in copyright small claims actions before that board have the opportunity to opt out from those entirely voluntary proceedings.
As of the time of this writing, Sohn’s nomination is currently being debated by the Senate Commerce Committee during an executive session and nominations hearing being webcasted on the committee’s website. If confirmed, Sohn’s presence on the FCC and the tiebreaking Democratic vote she would be able to provide likely presages a strong return to many of the net neutrality and some of the IP policies that marked the tenor of the Obama Administration.