The American Interest
Policy, Politics & Culture
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Why SOPA Is Inevitable
Published on January 19, 2012

Now that the awareness-raising blackouts over the notorious anti-piracy SOPA/PIPA legislation are behind us, it’s a good time to look ahead to what comes next for internet freedom. In the coming days, thousands of digital column-inches will be devoted to trying to see if these unprecedented virtual protests have managed to move the needle in the House and Senate. (At the time of writing, ProPublica’s tracking database listed 64 supporters and 108 opponents.) If these demonstrations fail to kill the bills, I suspect there may even be some second-order hand-wringing about the efficacy of online activism—and surely an article or two in Foreign Policy trying to discern why Twitter managed to depose Hosni Mubarak but failed to ensure its own future here in the Land of the Free.

But all this small-bore discussion rather misses the larger point. It’s all but inevitable that something like SOPA or PIPA will pass into law in the near future. This battle is the first of what will surely be many major attempts by governments to tame and civilize the internet. Over time, these efforts will gain ground. The internet will eventually be tamed, but how it happens is far more important than the preservation of the status quo. The role for those of us who are troubled by legislation such as SOPA and PIPA is not merely to stand in opposition, but to spend some time defining and defending the internet as a disruptive force. If we get mired in fighting the specifics of the proposals, we may implicitly cede ground that is no less important than any putative effects bad legislation might have. Indeed, we may have already done so in the SOPA debate without noticing.

But before getting into that, one must at least have a passing familiarity with the issues being debated. If you haven’t been following the story very closely, cast an eye over this quick backgrounder, which explains in only-somewhat-technical terms what is controversial about these bills. If reading about technology makes your eyes glaze over, here’s a short human-friendly video arguing against PIPA, and an op-ed about how these bills threaten free speech and make us more like China. For the other side of the story, have a look at Rep. Lamar Smith’s rebuttal of common criticisms of SOPA, watch a video arguing that millions of middle-class jobs are threatened by content piracy, and read the argument that pro-PIPA Senators are making to their complaining constituents.

So how bad are these bills? I’d say they’re at the very least troubling. Though the anti-SOPA rhetoric has reached a fever pitch, the concern is warranted. The previous major legislation on this matter, the 1998-vintage Digital Millennium Copyright Act (DMCA), has been prone to abuse by copyright holders since its inception and has been wielded with especially breathtaking carelessness and ruthlessness. SOPA and PIPA go a fair way toward dismantling many of the “safe harbor” compromises built into the DMCA, and they would in effect serve to expand rights-holders’ powers of harassment. This, in turn, would force small internet businesses to divert scarce resources to ensuring compliance with an overexpansive law: Imagine if Twitter or YouTube, in their infancy and on shoestring budgets, had to hire staff to monitor users’ contributions lest they run afoul of some Hollywood studio. Put simply, SOPA and PIPA increase costs for online startups and discourage the kind of free-wheeling (and disruptive) innovation that has been a hallmark of the internet.

On the free speech front, the anti-SOPA rhetoric may be overblown. After all, we don’t need to “show the way” to other countries on how to disrupt and control the internet. It’s not exactly rocket science, and governments that want a model for successful information control need only to look to China. It is depressing that our government is taking inspiration from Chinese techniques in the service of entrenched business interests, and it certainly doesn’t bode well for the future overall. SOPA and PIPA, however, will not bring us a new dystopian reality all by themselves.

But make no mistake: These bills will pass into law in one form or another. The inevitability of this kind of legislation largely stems from the heft of the proponents lined up behind them. Big Hollywood, Big Pharma and the U.S. Chamber of Commerce alone create a formidable special interest. Add various media corporations and a smattering of labor support, and this juggernaut may well be unstoppable. Silicon Valley versus Hollywood, as the fight is portrayed in the popular press, might have been a reasonably evenly matched duel. But as it stands, there’s very little hope for the opposition prevailing.

Furthermore, it’s likely that this battle is proceeding according to the supporters’ best-laid plans. The bills’ authors must have anticipated a strong negative public reaction, given that their main foes—Google, Wikipedia, Facebook and Twitter—have daily contact with a vast and potentially very noisy constituency. This may be why they pushed for a bill ladened with every heavy-handed provision they could dream up, fully anticipating that only the most draconian measures (like the one about tampering with domain name servers) would get stripped out before the opposition lost its focus.

And finally, we shouldn’t underestimate the government’s general distrust of something as anarchic and disruptive as the internet. As James C. Scott’s brilliant Seeing Like A State makes abundantly clear, bureaucracy and governance demand a radical simplification of the world, even if these simplifications often have outsized unintended consequences. People like Rep. Smith are by their very nature prone to approach something as complex as the internet in the manner that they have. And with the WikiLeaks scandals still stinging, the urge among legislators to do something must be strong.

But even if some sort of overreaching bill is inevitable, the fight against it is not futile. SOPA and PIPA are bad news as written, and all efforts at gelding them are worthy; even partial success should be applauded on the merits. More important than removing troubling provisions is the process of clearly and articulately explaining to voters the value of what legislators and media conglomerates so fear: the internet’s disruptive power. Unfortunately, in the course of the battle over SOPA, opponents have allowed a consensus opinion to emerge around exactly the opposite point.

As the Wall Street Journal gravely intoned the other day, “Everyone agrees, or at least claims to agree, that the illegal sale of copyrighted and trademarked products has become a world-wide, multibillion-dollar industry and a legitimate and growing economic problem.” In fact, everyone does not agree; this is very much a contentious point. The most devastating rebuttal of this line of thinking comes from Tim O’Reilly, the publisher of the wildly successful O’Reilly computer books. In one post, he writes:

There’s no question in my mind that piracy exists, that people around the world are enjoying creative content without paying for it, and even that some criminals are profiting by redistributing it. But is there actual economic harm? In my experience at O’Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O’Reilly books would never have paid us for them anyway; meanwhile, hundreds of thousands of others are buying content from us, many of them in countries that we were never able to do business with when our products were not available in digital form.

In another post, he goes even further to convincingly argue that piracy is akin to a signal that existing businesses are not effectively meeting market needs, and that efforts such as SOPA and PIPA merely delay these dinosaurs’ inevitable collapse (albeit at a not-insignificant cost to society):

Policies designed to protect industry players who are unwilling or unable to address unmet market needs are always bad policies. They retard the growth of new business models, and prop up inefficient companies. But in the end, they don’t even help the companies they try to protect. Because those companies are trying to preserve old business models and pricing power rather than trying to reach new customers, they ultimately cede the market not to pirates but to legitimate players who have more fully embraced the new opportunity. We’ve already seen this story play out in the success of Apple and Amazon. While the existing music companies were focused on fighting file sharing, Apple went on to provide a compelling new way to buy and enjoy music, and became the largest music retailer in the world. While book publishers have been fighting the imagined threat of piracy, Amazon, not pirates, has become the biggest threat to their business by offering authors an alternative way to reach the market without recourse to their former gatekeepers.

Like the Wall Street Journal, we here at The American Interest are in the content game, and we’ve struggled to adapt to the shifting marketplace along with the entire industry. We certainly haven’t cracked the code yet, but we’re hard at work on it. And the principle guiding our thinking is not “How do we recreate the glory of the Hearst empire?” but rather “How do we become the Apple of publishing?” (And no, we don’t see Amazon as a threat, but rather as a huge opportunity.)

This is the mode of thinking under attack by SOPA and PIPA, and these are the ideas that we must defend most fiercely. The forces that seek to civilize the internet aren’t merely concerned about copyright infringement; they would like to repress its disruptive nature in the realms of politics and power as well. So it would behoove us, for example, to consider things like the WikiLeaks fiasco not as dangerous security failures but as signals that our system of classification is broken. And more generally, we should see technological challenges to the status quo as challenges to ourselves to do better: Can we figure this out before someone else does and catches us with our pants down?

Damir Marusic is associate publisher of The American Interest. Follow him on Twitter at @dmarusic.