Inkwell: Authors and Artists

    
On January 18, many websites went dark as part of a web strike
protesting two proposed bills, the Stop Online Piracy Act (SOPA)
proposed in the house, and the Protect IP Act (PIPA) proposed in the
Senate. Both bills proposed to "rogue websites dedicated to infringing
or counterfeit goods."  Many Internet experts felt the bills would
"break the Internet" and have a chilling effect on the sharing of
legitimate content. Proponents withdrew the bills after the protest, in
which some sites (Wikipedia, Reddit, Boing Boing) were effectively
offline - a symbolic gesture suggesting that these sites would be
forced offline permanently if the laws were adopted.

While these specific bills were withdrawn, similar bills are expected,
this time with more input from Internet experts. 

We've asked Internet-savvy attorney and author Mike Godwin to discuss
the context for these bills, the bills themselves, and what might
follow now that they've been dropped. Mike was first counsel for the
Electronic Frontier Foundation (EFF) and, from 2007 through 2010,
general counsel for the Wikimedia Foundation. He's currently a member
of the Open Source Initiative board. Mike was one of the first
specialists in Internet law, and supervised their sponsorship of the
historic Steve Jackson Games case in the early 1990s. He was counsel
for the plaintiffs for the Supreme Court case arguing successfully
against the Communications Decency Act in 1996.

From 2003 to 2005, Mike worked with Public Knowledge, focusing on
copyright and technology policy, including the relationship between
digital rights management and American copyright law. he supervised
litigation that successfully challenged the Federal Communications
Commission's broadcast flag regulation that would have imposed DRM
restrictions on television From October 2005 to April 2007, Godwin was
a research fellow at Yale University, holding dual positions in the
Information Society Project (ISP) at Yale Law School,[9][10] and at the
Yale Computer Science Department's Privacy, Obligations and Rights in
Technologies of Information Assessment (PORTIA) project. 

We welcome your participation in this conversation, which will run
through the first of February. If you're not a member of the WELL but
have a question or something to add, email inkwell at well.com.
  

    
Mike, welcome to Inkwell. Could you start the discussion by giving
your views on SOPA and PIPA? What's the gist of the argument that these
bills would have been bad for the Internet?
  

    

I'll start by noting that the last time I was a guest of an inkwell.vue
discussion, as I recall, was when I published CYBER RIGHTS: DEFENDING FREE
SPEECH IN THE DIGITAL AGE back in 1997. The title itself seems quaint now,
because we no longer think of "the digital age" as something new -- we're
soaking in it. And events changed so quickly after 1997 that when I revised
CYBER RIGHTS just a few years later, I had to add 70-100 pages of new
material. And now even the second, revised edition is more a historical
snapshot than a guide to the current state of the law.

Which brings us to the Stop Online Piracy Act (SOPA) and the Protect IP Act
(PIPA). When I revised CYBER RIGHTS for the MIT Press edition in 2003, I had
to add a lot of material about the Digital Millennium Copyright Act (DMCA),
which set the stage for copyright law enforcement for the last decade. There
are good reasons to be critical of the DMCA (and I published some criticisms
about it early on), but there's one aspect of the DMCA that pretty much
everybody agrees turned out okay -- the "notice-and-takedown" provisions
that provide a great deal of protection for internet service providers
(including everything from Google to the WELL).

What notice-and-takedown provisions gave ISPs was a straightforward way to
respond to copyright complaints when a user (intentionally or unwittingly)
posted copyrighted material to a website. If someone posted (for example) a
chapter of CYBER RIGHTS to the Well without my permission, I could send a
formal notice to the WELL and, provided the WELL did "take down" the
allegedly infringing material, the WELL would face no copyright liability
-- even if WELL users managed to copy my chapter for their own use or sale
in the interval between the time the chapter was posted and the time the
WELL received the notice.

This was a boon to internet intermediaries that posted user-generated
content -- it provided a "bright-line" rule that, if followed, created
immunity for service providers. And this easy-to-comply-with rule made it
possible for countless online services, from Google to Reddit to
Wikipedia, to operate the way we understand them today. At the same time,
it allowed copyright owners to go after users who originally posted the 
(allegedly) infringing material. 

Web providers -- even services like Google and Yahoo!, which have to
respond to thousands of "takedown notices" a week -- liked this setup just
fine. Copyright owners and their representatives (think the Motion Picture
Association of America or the RIAA or the Harry Fox Agency) decided over
the last decade that they didn't like this setup much at all. They'd
rather sue Google (a rich defendant) than some middle-school student
who'll never be able to pay a copyright fine. And what's worse, in their
view, is that the internet is an international phenomenon now. So not only
are the copyright industries in the position of having to sue people with
no money, but they have to sue them *in foreign countries*. It's hard out
there for a ... publisher (as Terrence Howard or Three 6 Mafia might sing
in a remake of "Hustle & Flow" today).

Which brings us to SOPA and PIPA. You can find a good introduction to the
issues here: <http://en.wikipedia.org/wiki/Stop_Online_Piracy_Act>, but I
want to add a larger theme to the discussion of these two parallel pieces
of legislation. That theme is this: for most of the history of copyright
law, the duty to maintain and enforce copyrights fell largely on the
copyright owner. That is, if you held a copyright, you had certain duties
to register it, to protect your rights regarding the copyrighted work, and
so on.

Over time, however, the copyright-industry lobbies have been successful in
pushing those duties out to other entities, including but not limited to
law-enforcement agencies such as the FBI. Even the DMCA (passed in 1998)
can be understood this way, although a website hosting allegedly
infringing material could refuse to comply with the notice-and-takedown
provisions (and risk civil and maybe criminal liability under U.S. and
foreign copyright laws). 

Even that, though, has not been enough to satisfy the copyright
industries. In a world in which anyone with access to a search engine can
find a .torrent file for a recently released film on (say)
ThePirateBay.org, the copyright industries want to expand the duties
of internet service providers even further. They'd like to be able to 
require -- with a little or no judicial oversight -- that Google or 
Bing or Yahoo! or Reddit or Wikipedia -- remove links that (the
complainants assert) cause infringement. Or else face some serious legal
consequences. So they came up with SOPA and PIPA and found sponsors in the
U.S. Congress to promote those bills ... which until the last couple of
weeks seemed dead certain to pass.

And here's where the complaints about SOPA and PIPA "breaking the
internet" come in. Because the reason we find the Web so useful is that
merely linking is not itself generally considered to be an infringement
of copyright. And links are the lifeblood of the internet as we know it
today. Putting Google or Wikipedia or anyone else in the position of
having to police all the links they provide would, in fact, "break the
internet" -- at least according to me and other critics of the proposed
legislation. The dream of being able to follow associative links from one
information source to another -- a dream with roots in the writings of
Vannevar Bush, Ted Nelson, and others, and which came to first fruition in
the work of Sir Tim Berners-Lee -- may be at risk if all our service
providers are legally bound to remove links at the whim of (purported)
copyright owner. (Or, worse, in anticipatory fear that such complaint
*might* be made.) 

But don't take my word for it -- just read this incendiary radical
pamphlet published by those unrepentant socialists at Forbes:
<http://www.forbes.com/sites/thesba/2012/01/23/sopa-is-bad-for-small-business/>

(And now that I'm crowding 1000 words in my first posting, I'll give jonl
and others a chance to steer my free-association contributions here into
something responsive to whatever questions you may have.)
  

    

One more thing: Jon, if you'll remind me what the best link is for off-WELL
readers to follow and contribute to this colloquy, I'll tweet it and status-
update it, etc.
  

    
What an excellent idea for an Inkwell topic!  I had been intending to
do so some in depth reading on these.
  

    

Here's a good update from Congressional Quarterly:

<http://public.cq.com/docs/weeklyreport/weeklyreport-000004014002.html>
  

    
Here we go:  The long form external link for free reading is 

http://www.well.com/conf/inkwell.vue/topics/431/Mike-Godwin-discusses-SOPA-PIP
A-page01.html

http://tinyurl.com/inkwell-godwin   Or use your own favorite
shortening device.
 
  

    

Okay, here's some fairly astonishing news from Broadcasting & Cable
magazine:

Report: SOPA/PIPA Web Protest Generated More Online Chatter Than Super Bowl
<http://bit.ly/xkV5fW>
  

    
That's encouraging, though it would be interesting to see sentiment
analysis (if you believe in that sort of thing). It would also be
interesting to know, among those who opposed SOPA and PIPA, how well
they understood the context and meaning of the legislation.
  

    
You mention one issue of "breaking the Internet," which is not
technical, but a policy-driven chilling effect. Are there more
technical issues? What is the implication of blocking or rerouting
requests to specific domain names? 
  

    

@jerrybrito at Time thinks the reason the protest was so wide and so
successful is that most people it, more or less.

"It's unlikely we'll see the type of action that we saw last week very
often. The reason is that the SOPA issue has a unique set of characteristics
that allowed it to take advantage of the Internet's latent power to
overcome rational ignorance and to facilitate collective action by large
groups.

"First, one needed to learn very little about SOPA to gain at least a
superficial understanding of the issue and to form an opinion about it. That
was especially true for the tech-savvy community at the center of the
protest. Other issues will be much more complex and surmounting rational
ignorance will not be as simple."

Read more: <http://techland.time.com/2012/01/23/why-we-wont-see-many-
protests-like-the-sopa-blackout/#ixzz1kJVfbIsX>

Or try this: <http://goo.gl/AP2Qz>.

The point I think Jerry misses is that you really don't want to have this
kind of widespread blackout protest very frequently, because the audience
you're trying to reach is likely to become either bored or, worse,
resentful. 

Still, the blackout is (incredibly to jaded old me) something of a watershed
moment in DC circles. Policymakers either didn't believe there'd be
widespread protest, or didn't think it would matter, or didn't anticipate
the bills' passage could even be slowed, much less stopped.

Take the Congressional Quarterly story I linked to above -- it's rare to 
see a CQ reporter publish something quite so breathless as this:

"The Web Rises Up, Hill Backs Down

"By Keith Perine, CQ Staff

"One thing is clear after last week's widespread Web-based protest
against bills aimed at cracking down on online piracy: The Internet
now has a seat at the bargaining table.

"Thousands of websites, including Wikipedia, Google and Reddit, made
grass-roots lobbying history Jan. 18 by going dark or posting
prominent statements of opposition to the online piracy legislation,
saying the measures would give the government broad censorship powers.
The impact was immediate and unprecedented: Throughout the day, House
and Senate cosponsors pried their names off the bills, tweeting and
posting their newfound concerns. By week's end, Senate Democrats had
scrapped plans to take the measure to the floor Jan. 24. House
Republicans retreated as well...."
  

    

'You mention one issue of "breaking the Internet," which is not
 technical, but a policy-driven chilling effect. Are there more
 technical issues? What is the implication of blocking or rerouting
 requests to specific domain names?'

As a technical matter, legislatively mandated DNS blocking can be
sidestepped by anyone determined enough, and it doesn't require a
huge amount of technical knowledge. The more significant impact
of the legislation would be to put the search engines, link aggregators, and
services like Wikipedia in the role of copyright policemen -- except they'd
be policemen with little judicial oversight or other constraints. The
most likely short-term outcome would have been for search engines to
self-censor, in order to keep their administrative overhead manageable.
In other words, instead of waiting for the countless demands they'd get
from copyright holders, they'd likely be compelled (by economic factors
as much as political ones) to start blocking sites that even seemed
as if they might be facilitating infringement.

And they'd likely do this mechanically/algorithmically -- there are too
many websites out there for anybody's staff to review stuff effectively. So
you can imagine what might happen to a purely informative web page like this
one: <http://en.wikipedia.org/wiki/The_Pirate_Bay>. You and I can see that
it's an encyclopedia article, but for a computer algorithm based on search
terms, it's full of red flags.
  

    
Shabbir Safdar and Jonah Seiger, who collaborated on the campaign to
make web page backgrounds black as a protest against the Communications
Decency Act in 1996-7, once told me that they didn't think it could
happen that way again, that they hit the right time. Color page
backgrounds had just been added to the html spec, and many of the
companies involved were just small and rowdy enough to jump into the
fray.

The current campaign was helped quite a bit by Wikipedia's and
Google's participation - those were both so noticeable during the day -
but also by the distribution of relatively easy to use plugins for
Wordpress sites - there's a LOT of those.

Do you think the protest is over? We didn't quite make the argument,
supported by many, that we need to rethink copyright for the digital
age. We still don't have a broadly held understanding of the current
mediasphere, how it differs from mass media. We're in a confusing
transitional era, it seems to me.
  

    

I think Shabbir and Jonah were wrong on that issue because they believed
the success of their campaign was the function of a kind of technical
evolution of Web standards combined with the comparative youth of commercial
presence on the Web. In my view, the potential for a Web-wide protest never
went away -- it was inherent in many-to-many communications media, and, in
reality, it actually has grown. The Blue Ribbon free-speech campaign was
just the beginning.

Keep in mind too that the CDA protest was not itself the trigger for any
political action -- the CDA did, after all, pass and was signed into law
by President Clinton. And the people who opposed the CDA -- who argued that
it was flatly unconstitutional -- had taken that view as early as 1994 when
then-Senator Jim Exon first proposed it. Their opposition wasn't driven by
any outcry on the internet, and the Web was just beginning to take off. What
killed the CDA ultimately was not political action or public outcry.
(Probably most Americans at the time thought the internet was in fact out of
control and relentlessly exposing their kids to porn.) Instead, it was the
irreducible fact that the constitutional scholars were right about why the
law couldn't survive judicial scrutiny. And they were so right that even
the conservative justices on the Supreme Court felt compelled to strike
the CDA down, simply as a matter of constitutional law and precedent. 

What Shabbir and Jonah did, and the reason their work was important, was
that it was a kind of political "proof of concept" -- that political
organizing could, in fact, be mediated by the internet. This was before
most blogs, before MoveOn, before the Tea Party and Occupy movements. It was
a period in which commentators as different as Gary Chapman and David Frum
dismissed the internet as "trivia and sleaze" (Chapman's words) or "a cheap
and convenient way to send letters and buy books and compact discs" (that's
Frum). What Chapman and Frum had in common, at least at the time, was that
the internet was politically irrelevant because it wasn't being used for
political purposes, in their view. (Chapman's comments came before Shabbir
and Jonah's efforts, and Frum's came after, but both shared a kind of
disdain for the fact that most people using the internet in that period
were mainly having fun with it.)

Ironically, MoveOn originated the same year that Frum offered his "cheap and
convenient" judgment, and in the years since then, MoveOn has had rather
more of a political impact than David Frum ever did.

But to come back to the present -- the SOPA blackout/brownout had a direct
effect on the American political process that in my mind was unprecedented
by anything Shabbir and Jonah and Voters Telecom Watch ever did. You had
representatives and senators pulling support from the House and Senate
bills *that very day*. This doesn't diminish Jonah's and Shabbir's
pioneering work -- I was running EFF's Pioneer Awards that year and we
honored them for the Blue Ribbon Campaign. But instead of viewing their
accomplishment as irreproducible, we built upon it and proved that voices
amplified by the internet could change the direction of political discourse
in days -- arguably in hours.

One of the great things I've been lucky enough to live to witness has been
the predictions that I made, and that others at EFF made, about the social
and political impact of the internet have begun to come true. I should add
at this point, by the way, that I wholly disagree with those critics who
have argued that Arab Spring wasn't significantly amplified by Twitter
and other internet tools -- all these disintermediated communications
technologies promote increased collaboration and direct political action,
and that's something that isn't going to change anytime soon. If we're lucky
enough to live long enough, I expect we'll see it altering even the
political environment of the People's Republic of China, although I'm
not foolish enough to imagine this will lead to a predictable result.
  

    

To answer your last question: is the protest over? In a sense, yes, it is.
The SOPA/PIPA blackout killed the momentum of the current House and Senate
bills, and while it's theoretically possible they can be revived even
now, as a political matter they seem to be pretty much stalled. If they stay
stalled for a few more weeks, the political season will really kick in, and
Congress will be too distracted to put forward a controversial bill unlikely
to gain them a lot of votes or positive media exposure.

Is the fight over? No. The fight is never over. If there's one lesson I
learned in my years in DC, it's that one.
  

    
<We're in a confusing transitional era, it seems to me.> #12

That's it in a nutshell. The world has gone digital and transnational.
Law has not. These corporations would like to misdirect the efforts to
a national platform because they don't have recourse to anything else
that is monetarily effective. 

We're all in the breach and it's going to be a long fight to guarantee
our digital rights. EFF is going to have its hands full for years to
come.
  

    
Mike, do you see the withdrawal of SOPA and PIPA as a victory of the
technology industry over the content/media industry, as some say? Or is
that analysis too simplistic?
  

    

I think the analysis is in fact too simplistic because it implicitly accepts
what traditional DC circles see as the conventional wisdom about regulation
of this sort -- that it's just one industrial sector versus another. But if
this had just been an instance of tech industrial players fighting the
studios and publishers, it would have been much less newsworthy, because
industrial economic interests quarrel with each other in policy debates all
the time. What mattered here was that individual citizens made their voices
heard, and most of those citizens -- the people who vote, after all -- lined
up on one side of the debate.

There's widespread sentiment in the copyright industries that not only were
citizens misled about SOPA/PIPA, but also that it was somehow unfair that
citizen action was mobilized in a way that stalled progress on the
legislation and sidestepped the usual policy process in Washington (when
lobbyists focus on private briefings with policymakers ... or, more likely,
their staff members ... and try to cut a tolerable compromise deal). This of
course is a humorously out-of-touch notion about what counts as "unfair" --
most students who've had a basic civics class get that the ordinary lobbying
process is rather more unfair than petition drives and public protests.

The joke is made even funnier because the movie industry and the publishers
and the songwriters are supposed to be so good at telling persuasive stories
-- it's their stock in trade, after all. But telling compelling (and true)
stories is not just the province of professional, paid creators -- it's a
fundamental attribute of being human. And in this instance, the human beings
who were witnessing yet another expansion of content-company control over
copyright law seized control of the narrative, and none of the Hollywood
storytelling experts ever got it back.

In short, this wasn't a battle between two dinosaur-sized industries having
it out in a primeval conflict -- it was about the small, adaptable, quick
and warm-blooded mammals outsmarting a process that previously had favored
behemoths.
  

    
The copyright industry are delusional about why they lost this round.
But I don't think they can afford to face up to reality, so I assume
they will simply ignore it and try to find a new way of making the same
arguments.

It's tempting to think that they will simply try and try and try again
until they do break the Internet. Is there anything more strategic
that can be done by those of us who don't want that to happen?
  

    
And yet, it would seem that piracy does remain a problem, and it needs
to be dealt with. I was shocked to find an article posted at the Cato
Institute, of all places, making a lot of sense:

<http://www.cato-at-liberty.org/internet-regulation-the-economics-of-piracy/>

If he's right, it's the 1% of copyright creators, so to speak, who
suffer the biggest losses from this piracy. But, as a copyright creator
myself, I wouldn't mind if things were made a little tougher for
thieves, if only because maybe then the copyright industries (music,
film, publishing) would stop freaking out and turn their attention to
more important matters. We make little enough as it is these days,
after all, and thievery even extends to little things like my blog,
which has been hijacked by a SEO guy and renamed as a way of
distracting search engines from his "herbal supplement" client's
conviction for mail fraud. I'm not making much money off the blog, but
I just plain resent that. 
  

    
I think "piracy" is the wrong term for most of the sharing and copying
we see on the web. A pirate is into robbery, often using violence. The
meaning of the term is associated with physical theft: I take
something from you, and you don't have it anymore, which is not the
case with replicable digital media. Most of the "theft of intellectual
property" that content companies are concerned about are from an
entirely different intention than you would associate with piracy - for
the most part those who are torrenting digital media for others to
download aren't motivated by greed, aren't making a dime from those
shares. 

I'm not arguing that what they're doing is right, but that "piracy" is
the wrong term.

I can think of a hierarchy of distinctions: ripping intellectual
property to resell would be the worst case, but I think it's rare in an
environment where digital content is freely shared. Stealing content
to fill your own content sites, covering them with ads etc., is a
not-uncommon form of theft and, as Ed suggests, particularly egregious.
However I can't imagine that some guy ripping your site has negative
impact on the value of your content - much of that value is in the
context you've created and its association with your personal brand.
Your writing is brilliant, and people come to your blog to read Ed
Ward's brillant writing - this other guy probably isn't on anyone's
map; they might hit his site by accident. (I think site cloners have a
screw loose, personally - though I suppose if they have a thousand
sites covered with ads, they might have an income stream).

I personally think content companies have other worries than file
sharing, though it no doubt has some impact on their profits,
especially the music industry. But a bigger problems for all content
industries are that 1) they haven't quite worked out the models for
digital distribution, 2) Their value chains are disrupted by digital
distribution models, whether they're legal and paid or "piracy," and 3)
legal free content and user interaction are competing for mindshare,
and winning.  Furthermore the movie industry is suffering from
corporate control and a lack of creativity. It's a bad sequel to the
movie industry we knew and loved. People will still go to movies for
the theatre experience, but not if they're paying 12 bucks for lame
content. Many would rather watch flashes of five minute brilliance on
YouTube.
  

    
But "piracy" as theft is what the copyright creators want to make
indelible to the public perception.  Their public relations statements
always include that as a talking point.  Your distinctions while a good
summary of behaviors is irrelevant to the soundbite impact they are
going for.

I'd like to see the discussion veer into looking at the problem more
as attempts at protecting  monopolies.  While not exactly comparable in
a legal sense, the copyright creators start out with the assumption
that since they own the content, they can control everything.   
  

    
And then there's this:

http://www.forbes.com/sites/davidthier/2012/01/24/is-this-the-real-reason-why-
megaupload-was-shut-down/
  

    

What do you think about the effect of the Megaupload takedown on any
revival of SOPA/PIPA, if any?

Does the Megaupload takedown prove that SOPA is unnecessary?

<http://www.washingtonpost.com/blogs/ezra-klein/post/does-the-megaupload-takedo
wn-prove-that-sopa-is-unnecessary/2012/01/23/gIQAi7A0KQ_blog.html>
http://tinyurl.com/7ruuwrr
  

    

We just had a "slip" where two comments came in at about the same time
asking about the same question.
  

    
Mine is different and more paranoid. :-)