Brooklyn based author Chris Ruen has contributed to The New York Times, Slate, and Tiny Mixtapes amongst others, and is currently writing a book entitled ‘Freeloading’, about digital piracy. Here’s Chris with a sobering look at the SOPA/PIPA blackout within a broader context…
Originally posted on January 18, 2012, the day of the SOPA blackout.
Wikipedia, Boing Boing, Reddit, the iconoclastic visionaries behind the I Can Has Cheezburger franchise, and scores of other websites decided to go dark today in protest of the Stop Online Piracy Act (SOPA) and its Senate companion bill, the Protect Intellectual Property Act (PIPA). The laws were designed to provide both private rights holders and the Justice Department the power to bring complaints against foreign “rogue” websites “dedicated to online theft” before a federal judge, who would then evaluate the merits of the complaint and potentially order injunctions against Internet Service Providers (ISPs) to block those sites via the Domain Name System (DNS) from American customers. US-based payment processors and ad networks would also be ordered to suspend business with foreign sites found to be “dedicated” to copyright infringement or theft. Search engines would be obligated to take reasonable steps to filter such sites out from their results with ISPs shutting down links to those domains.
Contrary to what has been propagated, US websites like Tumblr or Facebook would be under no greater obligation than they already are to enforce copyright — the new burdens pertain to ISPs and search engines to apply pre-existing methods utilized for “censorship” like Spam-blocking or Google’s filtering of search results. SOPA/PIPA relates to foreign websites, not those originating in the United States. Safe Harbor provisions under the Digital Millennium Copyright Act, which protect Twitter or Tumblr from prosecution for a limited amount of infringing material, are unaffected by the law.
Ever since SOPA passed the Judiciary Committee in the House last December, the tech industry and its minions have stirred-up a hornet’s nest of paranoid groupthink, which reached its climax with today’s blackout. Most web users now know SOPA primarily as a “censorship” bill that will “break” the internet, much as American voters were duped into understanding health care reform as an unconstitutional “government takeover” replete with “death panels.”
Sensationalist fear-mongering often trumps informed discussion and over the past week SOPA/PIPA sponsors Rep. Lamar Smith and Sen. Patrick Leahy acquiesced to the digital heat, prudently stripping both bills of the DNS-blocking provisions as the White House released a statement rejecting the bills in their current form. Today, the SOPA blackout goes on despite the fact that the DNS-blocking that formed the source of critics’ censorship claims, which were disingenuous to begin with, is no longer part of the legislation. The blackout protest was originally meant to coincide with a hearing on the bill led by Rep. Darrel Issa. After the DNS-blocking changes, that hearing is no longer even happening. Yet the blackout goes on, in protest of non-existent censorship and muddling the minds of the masses on the issues at hand.
After researching and writing a book on the subject of digital piracy (which I label “FreeLoading”) for the past two years, in which I focus on the interests of independent artists, it is vexing to hear the roosting chickens cluck again for SOPA/PIPA. Though I support SOPA/PIPA’s goals in principle, that is to attack and marginalize the “worst of the worst” online entities who profit from facilitating FreeLoading, I stand in disagreement with all factions in one way or another.
The paranoid PR spewing forth for SOPA/PIPA is reminiscent of Napster v. Metallica. In that affair, Metallica held reason, morality and law on their side but had no clue how to make an argument that would stick with young minds. It didn’t help that they were filthy rich. Napster, though in clear violation of the law and exploiting the rights of artists for their own financial gain, told consumers exactly what we wanted to hear. We could have it all. Young downloaders (I was one of them) were encouraged to go on taking, taking and taking because unlicensed downloading helped the artists by promoting them. We were participating in a revolution, one which happened to gratify our infinite desires for high quality content…and for free! Oh, how hassle-free a revolt is was.
When Lars Ulrich made the dim-witted decision to show up to Napster’s offices in a limousine before presenting the names of thousands of users, who were later blocked from the service for downloading Metallica songs, FreeLoading transcended itself. Downloading unlicensed digital entertainment became fashionable and trendy, just as petitioning against SOPA is today. The mob mentality so curiously central to internet culture felt a directive. Destroy the music industry and fuck those rich artists. Piracy was the solution, not the problem. You can’t fight technology.
Not surprisingly, the technology sector has engendered explicit or tacit support from the tail-end of Generation X on through their Millennial descendants. “The internet” has been infinitely gratifying us while record labels, movie studios or the government are casually vilified as tyrants or profiteers who seek to restrict our supposed freedoms. As FreeLoading subtly reinforced our shared sense of entitlement over the years, groups like the Electronic Frontier Foundation, who are essentially set against any copyright enforcement online, have leveraged that entitlement to stir unsubstantiated paranoia while portraying copyright as a tool of evil corporate control that violates free speech and undercuts the internet’s potential.
We are lemmings to believe them.
Copyright as we know it, the exclusive right for an author to his or her works for a limited time, was born from the Enlightenment; the age of reason. Allowing authors (now all professional creators) the right to distribute their work as they pleased was an ingenious means of legally protecting them from exploitation by printers/distributors, ensuring incentives for the spread of independent wisdom and creativity in consumer society. As Terry Hart of the legal blog Copyhype has been exhaustively explaining, copyright has existed in tandem with the freedom of speech and freedom of the press for hundreds of years. All but one of the original States adopted their own copyright laws before our Constitution was even ratified. When it was ratified, that constitution included a copyright clause under the enumerated powers of Congress. Our first federal copyright law (1790) was passed before the Bill of Rights were accepted as constitutional amendments a year later.
Foundational to the American experiment, copyright was understood as a property right. Just as property rights prohibit our Freedom of Assembly from meaning we can trespass a private home or business to hold a rally, Freedom of Speech does not mean we can violate or infringe upon another person’s legal rights along our path to personal expression. Even the most staunch libertarian agrees that we ought to be able to do as we please as free citizens so long as we do not harm or infringe upon another citizen’s equal rights. Otherwise, the concept of legal rights would be meaningless.
But rather than recognize the exploitation of our fellow citizens’ legal rights that copyright exists to guard against, we hear defensive and absurd characterizations; that copyright enforcement measures today are means of attacking “the internet” — as if such a thing were possible.
The internet is a tool. Humans, endowed with free will and the capacity for reason, can choose to use tools in any way they please so long as it doesn’t violate our consented rule of law. The architecture of the internet may imply one conclusion or another, but that architecture is subservient to the general welfare of the people. Yes, computers are copying machines which offer new challenges to copyright. But that is a sorry excuse to throw our hands in the air in slothful acceptance that it is now permissible to exploit one another for pleasure or profit. Such are gestures toward dystopia.
A sentiment we have all heard or entertained post-Napster is that “you can’t fight technology” — representative of what I call Digital Determinism. That attitude is intellectually passive, morally lazy and ultimately self-destructive because it puts the entirely imaginary interests of “technology” above our own; much as Stalin put the abstract interests of the State above the immediate interests of people, rationalizing that the means of mass slaughter justified the ends of modernization or national greatness.
Digital Determinism leads us toward believing that humans must adapt to the rights of technology, not the other way around. Thus, rights holders are seen by Determinists as primarily responsible for “innovation” in response to FreeLoading; and protecting copyright is portrayed as an effort by cigar-chomping Hollywood villains to preserve their profits.
SOPA and the piracy wars in general have zero to do with nefarious attempts at preserving business models or refusing to innovate as piracy absolvers like Mike Masnick repeat ad nauseum, in sly attempts at blaming the victim. Business models are incidental to securing the individual rights granted by copyright. The vilified content industries who are leading the fight for SOPA only exist insofar as individual rights holders — mostly working class writers, musicians, and filmmakers — choose of their own free will to enter into contract with a respective publisher, record label or production company to extend their exclusive rights. That artists have the option of engineering their own publicity and distribution today with the help of digital tools (which I applaud) should make the alternate decision of nearly all working artists, to partner with labels/publishers, the more apparent to us as their choice.
Copyright is conditional upon an artist’s wishes. It equally protects their choice to give their work away for free or their right to charge a fee. The point is that it is their choice, not that of a consumer or distributor no matter how easy the internet makes it to overrule. The question is, are we prepared to respect that choice? At issue today is whether we see ourselves existing within the Enlightenment construct of philosopher Immanuel Kant, who believed that all human beings are capable of reason and free will, and therefore deserving of common rights and common respect. It is no accident that the principle of copyright is included in Article 27 of the United Nations Declaration of Human Rights.
Understanding how copyright fits into classic notions of legal and human rights, sites like Megaupload and The Pirate Bay that profit from unlicensed distribution are more easily seen for who they are. They use powers incidentally afforded by the internet’s architecture to exploit artists for their labor and then, sickeningly, they try to pass it off as virtue, progress or innovation. But if innovation means exploitation, freedom is slavery.
Whether they realize it or not, such services and their vocal supporters operate upon cruel, imperial logic. The power to exploit people for profit or pleasure exists as its own justification. It is the mentality of the schoolyard bully or the plundering empire, cast in newly digital form.
There are plenty of grey areas of copyright that the internet has exposed. What should constitute fair use and sampling law? Is it possible to completely enforce the rights of artists online? How are consumers supposed to know if a video or song on You Tube is violating an artists wishes, or whether the artist doesn’t mind some of their work being available for streaming?
Digital copyright is genuinely confusing: we have a disorienting new communication tool in its adolescence; paired with a legal right in need of adaptation; combined with the wishes of artists which are often unknown!
But these sincere confusions ought to be separated in our minds from whether a commercial website has the right to engage in the knowing, serial exploitation of working artists, publishers, record labels and production companies for profit. The existence of The Pirate Bay and their ilk (and their use by many of us) undercuts our very system of free expression and the incentives which engineer the possibility for truly independent human creativity by our most talented artists and communicators, supported by individual consumers rather than some form of corporate or state patronage. Maintaining that independence of human spirit, amidst crass consumerism and technological advancement, is what’s really at stake in the copyright wars. These stakes have little to do with the internet, but with the future of humanity in a technological age.
The content industries have failed to make the rights-based nature of this controversy clear, preferring economic arguments based on jobs or lost revenues that miss the real point. We should remember that such industries are not entitled to any baseline of revenues, or to exist at all. Perhaps FreeLoading is responsible for billions in losses, as the RIAA and MPAA claim. Or perhaps the RIAA’s critics are correct, that entertainment is a more competitive market than is was in the ‘90s and FreeLoading is not to blame for the free fall in sales.
The truth must be somewhere in the middle. The only claim more ridiculous than the RIAA’s mid-2000s argument, that each pirated album equals a lost sale, is the claim that no pirated copies equal lost sales. The search for objective proof for either claim is a futile one, cursed by hypotheticals and dynamic consumption patterns that are impossible to adequately measure.
Though focusing on the legal rights of individuals may be the best way to ultimately get our arms around FreeLoading, I suspect the content industries are a bit wary of emphasizing the enlightened principles of copyright, as that might expose the great contempt they have shown for such principles. If we begin to focus on the private rights that copyright affords to creators, which incentivize creation, it follows that we would examine the public right copyright simultaneously affords to citizens, to enjoy such creations through the public domain. The content industries would be horrified by a return to the elegant balance, between public and private rights, which copyright policy once satisfied. But, a return to that balance is the only enlightened way forward.
If we can agree to protect creators from digital exploitation, then we must also agree to dramatically scale back copyright terms from the current length: lifetime of the author plus 70 years. As a rights holder who strongly believes in the wisdom of copyright and its need for future protection, I see no reason why an exclusive right to my book should extend for more or less than 50 years total. Taken together, a good faith attempt at rescuing copyright from its current peril includes a search for common sense enforcement, paired with a movement toward the 50 year term or something close to it.
As a sign of such a strategy’s wisdom, we can imagine both Disney and the Google-funded Electronic Frontier Foundation reacting to its elements with apoplectic horror. Because they drive this debate, we get both sides pushing the existing imbalance in policy toward further extremes rather than come together in search of equilibrium. So, today we hear talk of existential disaster from the content industry… and hysterical warnings of censorship from the technology sector.
The most offensive charge in regards to SOPA is that it somehow will equate the US Government with the censorship of authoritarian regimes like China. Whether deriving more from ignorance or PR calculation, that charge is an insult to those around the world (especially in China) who live under regimes which violate Human Rights as a matter of policy.
We live in an open society of fair elections under the rule of law, guaranteed by our Constitution and checked by the branches of government and an imperfect, but for the most part free, press. The citizens of China do not have such good fortune and will likely shed blood if they ever demand the Human Rights we already enjoy. When China censors particular views and opinions expressed on the internet or spies upon its citizens, it need not require consent of the governed or approval from an independent judiciary. It simply acts as necessary to preserve the Party. If it feels threatened by an artist like Ai Wei Wei, he is detained by a kangaroo court without due process. If its citizens dare assemble to protest in a public space, they are massacred. The censorship of a government like China is in contempt of Human Rights. The protection of citizens’ rights attempted by digital copyright enforcement is in respect of Human Rights (as the principle of copyright is included within the UN Declaration).
Those who make the China slippery-slope argument apparently have zero faith in our Constitutional system. It is a resoundingly weak claim that we are encouraging Chinese oppression, as any legal enforcement measure, such as imprisonment, can be used nefariously by totalitarian regimes to violate human rights. To place SOPA or one’s imagined right to the fruits of other artists’ labor within the context of the injustices in China is the worst sort of propaganda, peddled an entitlement-soaked first world mentality.
“Waiting until now to get in a snit about the government, and then insisting that the American dream is somehow more at stake in your fight than in any of the great number of other very important political battles that are or should be going on right now, is going to lead people to believe that this might be the cause of self-centered, melodramatic dopes, blind to their own privilege and positively leaping at any evidence of persecution… And they’ll be on to something.”
When Google representatives make the charge that SOPA is making online censorship appear permissible to authoritarian regimes, they expose themselves as naked profiteers and outright hypocrites, as much as the RIAA ever have been. Google CEO Eric Schmidt stated last year that SOPA measures were classic cases of government censorship. As reported by The Guardian, he said, “If there is a law that requires [Domain Name Systems] to do x, and it’s passed by both houses of Congress and signed by the President of the United States, and we disagree with it, then we would still fight it…I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems. So, ‘let’s whack off the DNS.’ Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say ‘I don’t like free speech so I’ll whack off all those DNSs’ – that country would be China.”
But China and other global autocracies already censor their citizens, so it is unclear how an unrelated effort to protect copyright, which upholds the First Amendment, would provide a “precedent.” In any case, Google exhausted its credibility on censorship long ago.
You might recall that Google facilitated Chinese censorship when they agreed to block search results at the government’s request, such as “Tiananmen Square,” as the company tried to expand into China’s search engine market in the 2000s. At the time, Google released a statement explaining the complicity, which seemed so at odds with their edict of internet openness. The pithy statement read, “While removing search results is inconsistent with Google’s mission, providing no information…is more inconsistent with our mission.” In other words, the “open” internet could be fundamentally compromised in the case of China, when it meant greater profits for Google. But, if their advertising revenues were threatened by a US law that sought to protect the rights of its citizens, suddenly openness again became paramount. How very convenient.
Though I find their hypocrisy on this matter despicable, I am not categorically anti-Google. I use Gmail and YouTube every day and appreciate the moves the company has made to better serve rights holders as it pertains to YouTube. But, it is clear that the company has a long way to go in abandoning their obligatory anti-regulation stance, along with their hysterical propaganda (befitting of a totalitarian regime), and moving towards a good-faith partnership with rights holders and the Justice Department. Just last August, Google was forced to pay a $500 million penalty for violating Federal law after admitting to knowingly assisting Canadian pharmacies who were using AdWords to attract illegal prescription drug sales to US customers. Google was warned about the practice in 2003 but continued it until 2009 when they realized they were under criminal investigation. Google AdSense is commonly used on the same “rogue sites” that SOPA would target, as clearly shown in a recent blog post and video by filmmaker Ellen Seidler.
It is telling that in Eric Schmidt’s quote above, he criticized DNS-blocking and filtering as “censorship” similar to what China already does, but he made no mention of the internet “breaking” or other security concerns we have heard from SOPA critics. Rather, he called DNS-blocking an “appealing solution.”
I have learned enough about the DNS architecture, DNSSEC and how blocking actually works to know that I haven’t learned enough…and shouldn’t pretend to have definitive answers on that particular subject. I am not entirely convinced that DNS-blocking would be effective, in comparison to SOPA’s other provisions like cutting off payments to rogue sites. For that reason, I’m somewhat relieved that the DNS provisions have been stripped from the bills (even though the SOPA Manager’s Amendment had already explicitly stated that an ISP had no obligation to block any DNS if it meant compromising the security of the DNS system as a whole). Taking the long view on incentivizing creativity in the digital realm, I see no problem in taking gradual, cautious enforcement steps in our still early stage.
On the other hand, I am perturbed by the fact that ISPs in other nations have been blocking and redirecting Domains without the internet “breaking.” British, Italian, Belgian, Dutch, Irish and Finnish courts have all ordered DNS-blocking similar to SOPA/PIPA, and the apocalyptic predictions of the cyber-libertarians have yet to materialize overseas. Wouldn’t we have heard of massive security risks and clear free speech violations occurring in Europe, if they are so certain to occur in tandem with the proposed enforcement provisions? As for the argument that DNS-blocking would have no effect, there is at least some evidence to the contrary.
When courts in Belgium ordered domestic ISPs to block 11 Domain Names connected to The Pirate Bay, a spokesman for TPB told Torrent Freak, in characteristically puerile fashion, “This will just give us more traffic, as always. Thanks for the free advertising.” But since November, traffic to The Pirate Bay from Belgium has reportedly dropped by 80% while Italian traffic has plummeted by 74%.
ISPs very much have the capability to block DNSs and filter results, as shown by European efforts against The Pirate Bay or Australian ISPs voluntary effort to block the “worst of the worst” child pornography offenders. According to a report on such filtering by Delimiter.com, users can evade filtering rather easily by changing their personal DNS settings. But, how many would actually do this? It seems such filtering, applied to the “worst of the worst” exploiters of creators’ rights wouldn’t eliminate FreeLoading (nothing ever will), but would certainly marginalize it to more hardcore seekers of unlicensed content. If possible to implement without harming online security for users or affecting day-to-day use of the internet, making clear exploitation less convenient though such means strikes me as a worthy goal and a major step toward a more enlightened understanding of the internet, as the wonderful tool that it is and can be.
We are all rather impressed by the force of action and organization that has had such an effect on SOPA/PIPA, crystallizing with the blackouts occurring today. It is heartening to imagine such solidarity being applied to campaign finance laws, political reform, tax policy, education or matters of war. To me, that is one of the great possibilities of the internet: to connect us as individuals in service to a greater good.
But, we must also recognize that possibility cuts in both directions; and surrender our rose-colored glasses as it pertains to technology. As is being made clear today, the internet allows for great thought control when the same companies who profit from the internet use the medium for their own propaganda.
Did you sign a petition or contact your representative after really examining this issue? Or, did you take the information you were presented with for granted because it sounded so awful and because you trust the companies who provided it?
Think of what is happening. Digital Determinists and a tech industry categorically opposed to copyright enforcement repeated a false claim of “censorship” until a sufficient group of people were scared and believed it. A mob mentality formed, chiefly on Reddit, which then demanded a blackout based upon misinformation and hysteria. The mob grew and it grows. Today the very companies we have trusted to provide us with independent information, those digital entities who control our experiences online far more than our government (which, remember, is restrained by the constitution), are using their influence to spread propaganda for their own interests and to egg-on a fearful, insatiable mob.
By trusting too much in technology, we leave ourselves open to manipulation and thought control on an unimaginable scale, because from Digital Determinists and tech companies it comes buried within a rhetoric of freedom we so easily fall for as Americans. Google has no obligation to act in the interest of citizens and we now know they will completely abandon the principles of openness or neutrality when it is in their short-term interest. They are nothing more than a business, looking to satisfy their shareholders as much as Goldman Sachs or Phillip Morris. They only have your freedom or your legal rights at heart in so much as our institutions of self-government can oblige them to do so, via regulation and upholding the rule of law within the digital sphere.
The issue of protecting the enlightened principles of copyright in the digital age transcends a single piece of legislation. That challenge will remain whether or not a version of SOPA/PIPA passes. What concerns me more than the fate of SOPA is that an already dysfunctional debate over the legal rights of individual creators has become more dysfunctional, irrational and emotional. This dysfunction will make it more difficult to adequately protect independent human creativity in the digital age; that lack of protection will make it less likely that we are exposed to meaningful Truth in our daily lives through art and context; less exposure to Truth will leave us vulnerable to manipulation coming from corporations or the state; and that manipulation will lead humanity on a leash to a terminal decline.
Acceptance of exploitative entities like The Pirate Bay is both a symptom and cause of that decline. That acceptance implies that we don’t really respect our own creativity, or ourselves as human beings deserving of common rights. For the tech industry to confuse the public on this matter for their own gain is nefarious. For the public to accept their propaganda is lazy and pathetic.
Remember to think for yourself, god dammit.
By Chris Ruen