Seven Lessons from SOPA/PIPA/Megaupload and Four Proposals on Where We Go From Here
BY YOCHAI BENKLER
Wednesday, January 25 2012
<http://techpresident.com/news/21680/seven-lessons-sopapipamegauplaod-and-four-proposals-where-we-go-here>
We are pleased to publish this guest post on the lessons of the SOPA/PIPA/Megaupload fight by Yochai Benkler, Berkman Professor of Entrepreneurial Legal Studies at Harvard, faculty co-director of the Berkman Center for Internet and Society, and author of The Wealth of Networks and The Penguin and the Leviathan.
Lesson 1: The Networked Public Sphere comes to Washington.
On Wednesday, January 18, 2012, a new model of politics succeeded in bringing to a halt legislation that had been pushed by some of the most powerful industry lobbies in Washington, which began its life with broad bi-partisan support in both chambers of Congress. The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) were to be the most significant changes in intellectual property law since 1998, when a slew of laws, most importantly the Digital Millennium Copyright Act (DMCA) and the No Electronic Theft (NET) Act, first set the terms of engagement between the twentieth century incumbent cultural industries—mostly Hollywood and the recording industry—and the new forms of culture and creativity in the networked environment. By Friday January 20th, as Harry Reid announced that PIPA was not going to the floor of the Senate, Chris Dodd was raising a flag of truce on behalf of the Motion Picture Association of America (MPAA); suddenly, in the face of overwhelming political power the likes of which he told the New York Times he had not seen in forty years, the MPAA was ready to talk. But he wanted to talk to the tech industry; ignoring the fact that while the industry played a critical role in the opposition, it was the coalition combining for-profit and nonprofit; organized and decentralized; social-networked and blog/twitter-based action that successfully blocked the power of concentrated money on K Street.
It’s not up to the tech industry to negotiate on behalf of the millions of people who came to care.
Sure, Silicon Valley upped its lobbying game, and that was an important part of the story. But the turning point came when people who cared harnessed the network to concentrate human action. Whether it was the consumer boycott that put pressure on GoDaddy to abandon its support for the legislation, which caused other technology firms to shy away from supporting it; the constituents writing letters to their senators and representatives; or the remarkable democratic debate among hundreds of committed editors that preceded Wikipedia’s decision to shut down for a day, what we saw was that even in this day, when money is so powerful in American politics, people acting in concert can have a real impact.
For almost twenty years, the copyright industries have pushed hard against weak opposition, and extended the scope, reach, and aggressive enforcement of copyright to contain networked technology and resist networked culture. The political calculus seems to have changed drastically this week, and we need to understand how to exploit and harness the changing winds to expand and lock in this initial victory.
Lesson 2: Hollywood and the recording industry don’t like traditional copyright law, balanced by courts under due process constraints.
Copyright seems to be too balanced for the industry’s taste. Traditional copyright law has too many balances; too many reasons judges might prevent Hollywood from just shutting the whole thing down so people can be made to sit quietly on their couches and pay up. The bills were designed to try to create new pressure points that would allow either copyright owners or their associated functionaries at the Justice Department to kill threatening sites, without having to go to the trouble of identifying specific infringements or proving anything to a court. From the very beginning, in September of 2010, the first Senate bill, the Combating Online Infringements and Counterfeits Act (COICA), each successive version of the Act tried to avoid the inconvenience of actually having to prove that the site being targeted violated copyright law before inflicting mortal damage on that site. In that earliest version, the Justice Department was supposed to create a blacklist of “bad actors” by mere allegation; no proof necessary before these sites would start to be blocked. By the time SOPA was introduced, that power was directly granted to copyright owners for blocking payment systems and advertising, and again to the Justice Department, with slightly higher constraints, for blocking DNS service to the sites. Fundamentally, the aim of these laws was to replace the balance of copyright with a unilateral power to hobble or shut down whole sites suspected of helping piracy before a final determination of actual copyright liability, subject to all the balances that copyright has traditionally required between the rights of copyright owners and the rights of the public and later creators to use and build on the culture in which they are immersed.
Lesson 3: As the networked environment resists control, more of the flow of networked economy has to be sucked in to the enforcement vortex.
The Net is proving much harder to control than the industries anticipated when they got the Digital Millennium Copyright Act DMCA passed in 1998. In order to actually control materials on the Net, SOPA and PIPA tried to harness a range of technical, economic, and bureaucratic platforms, aimed to impede the functions of an ever-more-vaguely defined set of targets. Technical platforms included most prominently the DNS service and registrars and the search engines. Business platforms included payment systems and advertising systems. In order to achieve effective enforcement in a global digitally networked environment, Hollywood seems destined to try to draw an ever-larger set of platforms and actors into the risk of potential copyright and near-copyright liability.
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