Digital Culture Wars
SOPA and the Fight for Control of Online Content
Jan 18, 2012
6 Min read time
The recent congressional battle over the Stop Online Piracy Act (SOPA) has provoked unprecedented digital political activism in the United States. Libertarians, progressives, and technologists have formed a creative alliance to fight the bill. SOPA would grant sweeping, unprecedented powers to copyright and trademark owners, deny due process to alleged infringers, and menace free expression. Having researched “fusion centers,” a shadowy new law enforcement apparatus joining corporations and police forces, I fear that SOPA will accelerate surveillance by an unaccountable industry-government partnership.
The House’s SOPA and the Senate’s similar PROTECT IP Act (PIPA) are troubling proposals. Both SOPA and the milder PIPA would allow a federal prosecutor to obtain a court order against websites that infringe copyrights or trademarks, or sites that facilitate infringement. The bills do not require the court to grant basic due process protections to the target of the court order. They do give the court authority to bar any links or support for the targeted site from search engines, service providers, payment networks, and ad services.
Under SOPA, corporations in some situations would not even need a court order to take action against alleged infringers. They could just notify credit card companies of a “good faith belief” that a site was “primarily designed or operated for the purpose of” infringement, and the financial intermediary would have five days to stop doing business with the site.
SOPA and PIPA threaten to overturn a delicate balance between users, IP owners, and intermediaries established by the Digital Millennium Copyright Act of 1998. The DMCA requires intermediaries like YouTube to take down allegedly infringing content, but also requires them to put it back up if the user who uploaded it can demonstrate she is not infringing (e.g., under fair use doctrine). SOPA and PIPA would change the balance of power, encouraging Internet service providers, search engines, and payment processors to act as agents of content owners.
The bills’ sponsors have claimed that courts would ultimately step in to mitigate abuses of power granted by SOPA or PIPA. But the legal process can be agonizingly slow. For example, even though Veoh won the first round of a lawsuit filed against it in 2007 by a major label, the case is still on appeal. Funding for the enterprise dried up thanks to the uncertainty. By 2010, Veoh’s founder “had to sell the company [once valued at over $130 million] in a fire sale to a small startup.” It’s hard to imagine how such a start-up could even get off the ground in a legal environment more heavily tilted toward content owners.
Scholars have exposed the legal infirmities and practical shortcomings of SOPA and PIPA at length. White House opposition probably dooms SOPA in its current form. But as the legislative horse-trading continues, a milder version of anti-piracy legislation may emerge. Could a SOPA-lite promote fair compensation for creators while preserving Internet liberties? It might make sense in the realm of trademark, where marks are an important method of quality assurance and free expression concerns are rarely salient. But in the realm of copyright, SOPA represents a fundamentally wrongheaded approach.
SOPA tries to do via novel police powers what is better accomplished by taxing users of intellectual property and subsidizing its creators. In the past, when Congress realized that new technology would lead to widespread copying, it imposed a small fee per copy—a practice known as compulsory licensing. This regime, still in place for many works, separates compensation from control. SOPA’s sponsors aspire to grant absolute control to copyright holders, and would trample free speech and a thriving remix culture on their way to that singular aim. But control is only one route to compensation. The recording industry itself has repeatedly (and successfully) lobbied to force composers and lyricists to accept a governmentally set compulsory license.
Contemporary American politics privileges policing and punishment, while marginalizing the arts and the commons.
Some say that the compulsory licensing regime can’t work in the Wild West of untrammeled Internet distribution. But Harvard Law Professor Terry Fisher has offered a detailed and compelling proposal in Promises to Keep: Technology, Law, and the Future of Entertainment. The Fisher plan would subsidize culture by lightly taxing the technology that leads to its uncompensated duplication. Such fees will need to be capped and, hopefully, keyed to income. They are probably best collected as a sliding-scale user fee.
Who gets the money? Fisher wants artists to be compensated according to how often their work is actually viewed, or listened to; Dean Baker has called for “artistic freedom vouchers” that would allow taxpayers to choose ex ante whom they want to support each year. Either approach is likely to be more efficient than the current bramble of copyright law and disorder.
In 2004, Fisher estimated that a fee of six dollars per month on broadband subscribers would cover all the music and movie industry revenue allegedly lost due to piracy. If piracy rises, the fee could also expand, or apply to hardware. A small tax on the unearned investment income of wealthy households would also help here, just as one is planned to help fund the Affordable Care Act. Like health care, culture has positive externalities. It deserves more support from those best able to pay for society’s common needs.
Unfortunately, the Recording Industry Association of America and the Motion Picture Association of America appear about as enthusiastic for a public option in entertainment as private insurers have been about it in health care. Thanks to that opposition, some might dismiss Fisher’s idea as a pipe dream—nothing even remotely resembling a new tax could pass through our political system, right? But what does it say about our Congress that it is readier to turbocharge a police state, largely in the service content industry oligopolists, than it is to revise and expand a venerable licensing method to support struggling journalists, artists, and musicians? Make content affordable and accessible, and the piracy problem will decline precipitously.
Unfortunately, as Bernard Harcourt has shown, contemporary American politics has continually privileged policing and punishment, while marginalizing the welfare state and its support for the arts and the commons. This is a tragic imbalance on many levels, not least for creative endeavors. The dole has supported many an artist. Hans Abbing’s fascinating work Why Are Artists Poor? flatly states that many creatives survive thanks to the generosity of the European welfare state. He sees the “exceptional economy of the arts” as essentially “pre-capitalist,” with gift relationships, personal contact, and dependence crucial aspects of the equation.
SOPA and current legislative battles have more to do with preserving CEO paydays for the massive content industry than with the actual material foundations for creativity. And we should not be surprised if the ultimate political economy of IP enforcement shifts to vertically integrated firms that use control over the “pipes” to monitor, deter, and perhaps ultimately ban content that threatens profits. The great irony of libertarians’ outrage over SOPA is that the same conduct they’d condemn if perpetrated by FBI content police, they’d likely characterize as an inalienable right of cable companies if done solely by those private entities to manage their networks. The strange bedfellows now opposing SOPA probably won’t be together for long.
SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.
January 18, 2012
6 Min read time