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Copywrong and the Long, Overreaching Arm of the Law

December 7, 2011

Last year, Hollywood (aka “Big Content”) failed to get Combating Online Infringement and Counterfeits Act (COICA) rammed through a Congress distracted by debt and budget crises. Most of us breathed a sigh of relief that Big Content didn’t manage to foist the responsibility of enforcing online copyright onto the federal government or require the government to kill apparently infringing websites. The inherent murkiness of claims of copyright infringement (i.e., is this content copyrighted [or copyrightable] in the first place, does this person have the right to reproduce the content, is this a fair use, etc.) is particularly worrisome if you care at all about the chilling effects that such ruthless enforcement would have on free speech. Such enforcement would be even more scary if you also cared about access to justice for people who cannot afford to pay the legal fees that might be necessary to vindicate their claims (and which Big Content would be saving by shifting the burden to the federal government).

Well, while Congress was gone, Big Content had a chance to regroup and reformulate their strategy. Enter the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA). Both bills have been described as bills that will “kill the Internet.”

More specifically, SOPA prescribes Internet “blacklists” whereby a copyright holder can simply claim (without verification) that a suspicious site is infringing on their copyright, and add that site to the blacklist. After adding the site to the blacklist, the copyright holder needs only send notices to credit card companies and advertising networks to shut down all payments to the site. Cutting off the flow of money to these small sites would cripple them, despite having no opportunity to be heard on whether there was even an infringement in the first place. Such a site would then have to use its dwindling resources to take the battle to court over legal questions that are usually far from clear (especially when fair use is at issue).

Or the copyright holder can just sit back while the Attorney General’s office gets a court order to force Internet Service Providers to block people from viewing the site, to force search engines to remove those sites from their results, and so on. Before you ask, “are we in China or something, with all this proposed site-blocking?” there’s more: the purported infringement does not need to be direct, and SOPA reaches sites that may merely “facilitat[e] the commission” of copyright infringement (goodbye YouTube, user-generated content sites, and many parts of Google). And even more ironically, the kinds of privacy/circumvention tools supported within human rights communities and by the U.S. government as part of Internet freedom initiatives against authoritarian censorship are also targeted for elimination under SOPA.

But let’s say you just want to promote artistic creation. SOPA fails at that measure too as it prescribes up to five years in jail for one infringing upload such as a YouTube video of you singing a pop song. Even a Justin Bieber fan visiting http://freebieber.org/ can realize the implications of this inexplicably broad provision: the videos that teenage Justin Bieber posted of himself singing songs by his favorite artists would be felonies under SOPA. This is a particular irony, since those videos launched Bieber’s career as a musician – exactly the people SOPA is intended to protect.

Predictably, SOPA has already been the target of a massive campaign to stop its passage. Google has even threatened to leave the United States Chamber of Commerce over the issue (and Yahoo! already has). And with the lightning storm of negative attention SOPA has gotten, PIPA (which was originally a rewrite of COICA, which is now sounding like a less harsh alternative) has been modified to now include almost all of the same terrible aspects of SOPA. Perhaps Big Content is hoping to confine negative attention to SOPA, so that PIPA can slip through relatively undetected.

Now, before I go any further, of course I recognize that it’s entirely reasonable and fair to expect content producers like Fox, Viacom, Universal or BMI to get a return on their investment, and it’s even more understandable that Big Content would want to prevent people from consuming and distributing such intellectual property without paying. My concern is not whether or not these creators deserve to get paid; it’s a question of whether they should be allowed to destroy freedom of speech and expression to protect their investments.

In the same way that drug use may be deplorable and something that everyone recognizes is illegal, SOPA proposes an all-out drug war, but with the collateral damage being your freedom to communicate.

Copy machines were a boon to business when they became widespread. Goodbye carbon paper, hello inappropriate office humor. Fax machines were an excellent invention too. A document could be sent across the country without having to transport it. These inventions made it much easier to reproduce and send copyrighted material. Doing so was illegal. But we didn’t respond by holding office hardware or telephone companies responsible for any user who broke the law.

And, as Matt Yglesias pointed out, there is a legitimate and open question of whether we want an intellectual property system that cracks down on all copying whatsoever. Do we want a system “that gives the first company to stumble on a basic user interface concept like the graphical user interface or multi-touch tablet computing to have a 20-year monopoly on those concepts.” Or do we want the benefits from innovation to flow to the people?

Copying of business concepts is integral to the “invisible hand” model of market competition. The idea is that firms want to become more profitable. So they think up ways to cut costs or raise prices or increase sales or whatever. Profit! But then other firms look at those ideas and copy them. The result is a Red Queen’s Race. Firms need to be constantly copying other firms’ best ideas just to avoid going out of business. The ultimate beneficiaries end up being consumers, who take advantage of the more/better/cheaper products.

Indeed, with such a massive imposition on the people’s ability to communicate and learn (as well as the huge costs of monitoring and enforcing this scheme), there isn’t exactly an issue of whether SOPA/PIPA would enhance the welfare of the people at large. It’s pretty clear that SOPA/PIPA are for the benefit of Big Content, thrashing about in a world where their business models have become increasingly obsolete (thanks to the democratized world created by the sites they’re trying to squelch). It’s therefore no surprise that record executives make arguments about starving artists, even though artists have made more money, on average, after the rise of online tools that enable self-production, free distribution, and self-promotion.

Instead, Congress is merely the current venue for the latest demands of corporate entitlement, just as the Treasury and even the Federal Reserve were conduits of secret tax-fueled bailouts that large banks treated just like income, and just as the Judiciary is the arena for the patent trolls and the patent trolled to duke things out. The proof is in the fact that the MPAA is now openly negotiating what language should make it into the final form of SOPA.

Back in the old days, Congress was a branch of the federal government, separate from corporations, that wrote and passed laws to defend the general welfare of the United States. These days, however, that work is being outsourced to private interests while the actual members of Congress, quaint as they are, spend their time fundraising for their next re-election campaign.

When you hear that both Nancy Pelosi and Darrell Issa are agreeing that a bill is bad you know that there’s something seriously devious is afoot.

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