The House’s Stop Online Piracy Act (SOPA), and the Senate’s companion Protect Intellectual Property Act (PIPA), were shelved last week in the wake of protests by dozens of websites and large numbers of their users, as well as a virtually unanimous chorus of criticism from leading progressive voices and outlets, including Michael Moore, Cenk Uygur, Keith Olbermann, Alternet, Daily Kos, MoveOn and many people associated with Occupy Wall Street. Judging by the fervor of the anti-SOPA/PIPA protests, a casual observer might think the advocates of the anti-piracy bills were in the same moral league as the torturers at Abu Ghraib.
To be sure, the legislators who crafted the ill-fated bills and the film industry lobbyists who supported them have little to be proud of. As someone who makes my living in the music business representing artists who are hurt by piracy, I was frustrated by the failure of the bills’ proponents to explain their rationale in language I could understand. This may have been because the bills themselves were so flawed, but it also reflects the delusion that this issue could be settled in the corridors of Washington without public debate. (This presumption was exemplified by the statements of MPAA Chairman and CEO Chris Dodd, who petulantly threatened that the Obama administration’s defection to the anti-SOPA/PIPA camp would imperil Hollywood contributions to Democrats.)
But before we celebrate this “populist” victory, it’s worth remembering that the defeat of SOPA and PIPA was also a victory for the enormously powerful tech industry, which almost always beats the far smaller creative businesses in legislative disputes. (Google alone generated more than $37 billion in 2011, more than double the revenue of all record companies, major and indie combined.)
It is also worth contemplating the moral compass of Megaupload.com’s Kim Dotcom, who was arrested in New Zealand last week in his 25,000-square-foot compound surrounded by a fleet of Mercedes and Ferraris, all allegedly made possible by selling content stolen from artists (and yes, entertainment companies) around the world. As film producer (Mean Streets, The Last Waltz) and author Jon Taplin wrote on his blog, putting the accused pirate’s riches in perspective, “A bunch of the musicians I worked with in the 1960’s and 1970’s, who made wonderful records that are still on iPod have seen their royalties cut by 80 percent.”
One example of anti-SOPA rhetorical over-reach was a tendency by some to invent sinister motives for the sponsors. On his usually brilliant show The Young Turks, Uygur said that SOPA’s sponsors were “pushing for a monopoly for the MPAA and to kill their competition on the Internet.” This is untrue. They wanted to kill those entities that steal their movies and make money off them, either directly or indirectly. There really is a difference.
In a widely viewed anti-SOPA/PIPA speech on Ted.com [1], Internet philosopher Clay Shirky similarly attributed dark motives to the studios. The targets are not Google and Yahoo, he said, “They’re us, we’re the people getting policed.” This is accurate only if by “us” he means the people who illegally watched Hugo from the likes of Megaupload. If he means a friend sharing Marianne Faithfull’s version of “Visions of Johanna” with me on Facebook, then the accusation is absurd.
Shirky’s remarks begin with a poignant anecdote about a bakery that stopped allowing children to put up their own drawings of characters like Mickey Mouse because of fear of copyright lawsuits. Examples such as this, or of a theoretical risk of parents being charged for the right to have kids sing “Happy Birthday”, are demagogic. The underlying issue is scale. There is a profound moral difference between loaning a friend a book and posting, without permission, the content of bestsellers for commercial gain—and people and legislators ought to take that distinction into account.
SOPA and PIPA bashers were also a little loose with the word “censorship”. To me, that word should be reserved for government power that restricts ideas—like the US government locking up Eugene Debs for opposing World War I, or prosecuting City Lights Books for selling Howl. This kind of repression is common now in China, where most computers and cell phones are made by oppressed labor. Real censorship is dreadful enough that there ought to be a different word for laws that would try to prevent websites from illegally posting the latest Mission Impossible movies or making ancillary income from the eyeballs such transactions attract.
One of Shirky’s acolytes wrote on the comments page, “We're talking about *digital* content here. When I copy digital information, no one loses anything. The creator of the content doesn't lose profit, because I haven't taken anything physical from them. It does not cost anything to copy digital information. It isn't stealing to copy a digital something.” Umm…what about the cost of creating the content worth copying?
As Robert Levine describes in his book Free Ride, down this road lies a barren culture with lots of dancing kittens on YouTube but no infrastructure that can nurture future artists. Piracy enablers stress the need to maintain incentives for investment in tech companies. But maybe business models that depend on using copyrighted material for free should not attract investment in the first place. iTunes pays artists, record companies and songwriters and is doing just fine. Meanwhile, the degradation of the value of intellectual property elsewhere online has caused a dramatic reduction of investment in businesses that fund the creation of journalism, literature, music and films.
For years, there have been Internet philosophers who claimed that advertising revenue would replace copyright revenue and those of us in the “old media” simply needed to get up to date. It’s simply not true.
Some argue that, since iTunes and Amazon and are surviving, Napster’s original model was legally killed and Kim Dotcom was apprehended, no new laws are needed. The status quo may be what we end up with, but that doesn’t make it inevitable or right. Human beings have created the piracy problem and although, like any kind of crime, society can’t eliminate it entirely, we can decide whether or not to seriously try.
In a way, this is a fight between Godzilla and King Kong. Consumers may like Godzilla because they don’t want any interruption in the full use of their gadgets. And I prefer King Kong because I’ve never seen an Internet company give advances to writers, musicians or filmmakers that allow them to concentrate on creativity. But let’s be real—we should look at all of these companies with a jaundiced eye and question their talking points at least as rigorously as we scrutinize politicians. What is good for Google and Facebook is not always going to be what’s best for the 99 percent. (And of course Microsoft and Apple et al. are extremely aggressive when it comes to protecting their intellectual property rights).
I hope that in future weeks, some of the anti-SOPA/PIPA progressives will reflect on the content of some of the Kool-Aid that has recently been served and help swing the pendulum back, if only a little, in a direction in which intellectual property can be nourished. Otherwise, we will be complicit in accelerating the trend of the last decade, in which those who write code get richly rewarded, while those who write the music, poetry, drama and journalism that are being encoded have to get day jobs.