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The Light at the End of the Blackout

January 18, 2012

At this point, I don’t think I have to tell you about SOPA or it’s slightly less evil twin PIPA. Wikipedia is blacked out in protest of those bills today, as are Reddit, BoingBoing and dozens of other sites hosted by good netizens who care about the vibrancy of the speech ecosystem that is the Internet. GoogleCraigslist, and others have at least taken the step of prominently displaying their opposition to the bills (if not gone for the full blackout). So I’m guessing if you’re reading this, you’re at least aware of SOPA/PIPA at this point.

Nor do I think that I can do a whole lot by continuing to elaborate on what I’ve already said about why SOPA/PIPA are terribly misguided and wrong, especially because there are other far more detailed legal and technical analyses out there, infographics both simple and complicated if you like your information arranged visually, and animated gifs involving kittens–this is the Internet after all–to make the case to anyone with an open mind.

So, given that all of these other players have stepped in to illustrate that SOPA/PIPA are a Big Fucking Deal, I would point out that we could be thinking about alternatives to the overly coercive and litigious intellectual property regime we currently live in. After all, SOPA/PIPA are simply the drastically overbroad enforcement mechanisms for an already overbroad Copyright law, and it is that combination that would break the Internet. Just consider how overbroad Copyright must be if many of its Congressional supporters have infringed copyrights in their own websites and campaign materials.

The problem is that Copyright affixes to anything and everything, and lasts for the entire life of its author plus an additional 70 years (on the arguably implausible grounds that these crazy long protections inspire creators to create more). Prior to 1978, it used to be only a 56-year term, and back in the days of the Founding Fathers (when sales of creative works moved considerably slower), it was only 14 years. The reason is that Copyright has slowly morphed into a tool for rent-seeking by the creative industry, which is much more industrial than it is creative.

Indeed, if we’re actually thinking about what might constitute a good ecosystem for creation (and not just whether the latest iteration of industrial rent-seeking would break the Internet), we would have to think about why we are using a one-size-fits-all approach to incentivizing creation. Some things are obviously  better suited to shorter Copyright terms (such as speeches or news or other current events), while some are more suited to longer terms (like movies). We used to have a system where a creator would have to take a few simple steps to ensure copyright protection, but those steps would at least allow a few things to slip through to the public domain if they were deemed worthless, and thereby inure to the public’s benefit.

Consumers greatly benefit from having works pass into the public domain. Not only do consumers get cheaper access to works that are unnecessarily protected, but new creators can pull from these older inputs without having to worry about the threat of litigation from these same rent-seeking industrial firms that are trying to squeeze every last dime from everything created since 1923.

As Alex Tabbarok points out, there are ample amounts of creative inputs that could have passed into the public domain if only we let them. And they should have, were it not for ex post facto copyright extension (passed for the sake of the heirs and assignees, hence the name the Mickey Mouse Protection Act), even though it’s pretty implausible to think that creators who had already created the works would somehow have retroactive incentives to have created works over 56 years ago.

Under the old law, the above works could not only have been consumed they could also at low cost and without requiring the express permission of the original copyright holder have been remixed, reworked and extended in new directions. Under the new regime, innovators will not be able to easily build on these works until 2051 and it could be well into the 22nd century before we get Star Wars prequels worthy of the name.

With a more robust cycle of works falling into the public domain, the Raiders of the Lost Ark (and every other film or creative work that stands on the shoulders of countless giants) might not be so terribly ironic.

So while I still expect that SOPA/PIPA will be eventually defeated, I hope we don’t squander our precious moment of illumination and clarity that apparently only comes during a blackout.

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