SOPA and the Obvious

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We are lucky that copyright issues have not divided along a left/right axis. But even though copyright is not a partisan issue, the copyright wars are a political fight. They are part of the struggle for control over the way people communicate in the 21st Century--the digital public square. Copyright debates have taken on the characteristics, including the bad ones, of more familiar political debates. Zombie lies (in Paul Krugman's words, "one of those misstatements that keeps being debunked, but keeps coming back"), us vs. them thinking, and hyperbolic overstatement are all common. Of course each side in the debates will accuse the other of each of these.

George Orwell once diagnosed "political thinking." He wrote that "[p]eople can foresee the future only when it coincides with their own wishes, and the most grossly obvious facts can be ignored when they are unwelcome." The copyright wars demonstrate this. While it is great that SOPA and PIPA were defeated, it should be obvious that they couldn't work--pirates can always adapt faster than legislators. After a decade-plus of futile struggles against online copyright infringement, you'd think that content companies would realize that the best way to counter piracy is to make it obsolete. Wishful thinking won't work. SOPA and PIPA would only have raised the costs of doing business online and burdened legitimate web companies without hurting real pirates. To be cynical, this could have been the real motivation for the bills--to raise the costs of technological disruption and make it less likely, to ensure that traditional media companies retain their central cultural role. After all, maybe the biggest threat to media companies from the Internet isn't piracy, but the ability of users to use new tools to bypass traditional gatekeepers.

But a more charitable assumption would be that the bills really were only targeted at "the worst of the worst," true bad actors, with damage to the legitimate Internet industry just collateral. In this case the bills were merely deluded, not malicious, because they try to wish the Internet away.

The Internet works by making, moving, and storing copies. When you visit a website you make a copy of it on your computer. An email doesn't really "arrive" in your inbox; instead, software creates a copy of it there. Every Twitter user reads a different copy of your latest hilarious tweet. All of the same principles that make the Internet work at all make it easy to make a copy of a movie and send it over the Internet. It is easy to move around copies of ebooks: a cheap thumb drive can store hundreds of thousands of them.

This is an obvious point which is why, in this climate, it is worth making. Eventually it might stick. Cory Doctorow has said it again and again. He writes, "Copying stuff is never, ever going to get any harder than it is today .... Hard drives aren't going to get bulkier, more expensive, or less capacious. Networks won't get slower or harder to access." Copying isn't easy on the Internet due to some oversight, some failure to deploy the right protocol. Copying is easy on the Internet because copying is how computers and networks work. You can have an Internet where copying is easy, or you can have no Internet. There is no middle way.

As long as we have the Internet, a business model based on preventing people from making copies, or in pretending that copies are scarce, must fail. Content industries need to make money in new ways--by selling access to subscription services, by providing easy access to vast catalogs of material, by providing unique experiences, and by licensing their content widely. They don't like to hear this because it certainly means they will make much less money in the future than they do today. But the alternative is they go out of business and make no money at all.

In response to the White House's call for everyone to "do their part" to help combat piracy, technologist Nat Torkington wrote that "We gave you the Web. We gave you MP3 and MP4. We gave you e-commerce, micropayments, PayPal, Netflix, iTunes, Amazon, the iPad, the iPhone, the laptop, 3G, wifi--hell, you can even get online while you're on an AIRPLANE. What the hell more do you want from us?"

Certainly things can be done from a legal perspective to help content creators. Public Knowledge recently supported an effort to create a small claims court for copyright holders. And bills that make it hard to profit from infringement and shut down illegal commercial activities, if structured correctly, could do a lot of good. But the underlying issue of people making and sharing copies with each other is not going anywhere and they will not solve all of the industry's problems. As Torkington observes the primary tools for fighting infringement online already exist and all that remains is for the content industries to use them.

Orwell also wrote that many people have "a secret belief" that their "political opinions ... will not have to be tested against solid reality." Many in the copyright industries have for a long time believed that they don't need to change, that everyone else does instead. But that belief is being tested.

The Economist wrote a piece recently comparing the fortunes of FujiFilm and Kodak. The camera film industry has, of course, all but disappeared. But FujiFilm saw this coming, prepared, and figured out how to parlay its expertise into new areas. Today its technology is an industry-standard part of almost all LCD displays. Kodak didn't prepare adequately and has filed for bankruptcy.

For now it is true that the immediate threat to the Internet has been neutralized due to widespread disgust at the overreach of SOPA and PIPA. But the content companies themselves are in grave danger if they don't realize that it is they, and not the Internet, that must change. They can change--their business models are contingent. But computers and networks can't stop making copies. No law can change that.

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