Not Dark Today

Wednesday, January 18, 2012 – the day Silicon Valley faced off against Hollywood – and this site didn’t go dark. Wikipedia and many others did – in protest – but this site isn’t about causes, or advocacy. The idea here is to think things through and note complexities, and ambiguities, and absurdities of course. It’s the journey that determines the destination – or something like that. Take a current hot issue being slapped back and forth in the national chit-chat and turn it over, poke at it, hold it up to the light, shake it and listen to what rattles, note what others think they see – and then see what the real issue is. That’s not protest. That’s not taking a stand, unless that’s taking a stand for the principle of stepping back and thinking things through. And when you do that you never quite know which side of an issue you’ll come down on, if you even do. This may drive the very few readers here crazy, but there’s not much that can be done about that. Unlike many who came of age in the social and political upheavals of the sixties – the age of both righteous and self-righteous protest against both real outrages and the inevitable nonsense that is the byproduct of folks just not paying attention – there are those of us who have always been wary of riding the high-horse. You can end up looking damned silly up there. And no one up there is listening to anyone else. Causes are narrowing. They shut down possibilities, even if they do allow you to think wonderful things about yourself. In the sixties it was the counterculture left, and last year it was the Tea Party crowd – all about never compromising, and both equally tedious. But then which way you choose to deal with outrages, or nonsense, may simply be a function of the core personality you were handed at birth. Some of us didn’t get the outrage gene.

But it seems that Congress is weighing two bills – one called Stop Online Piracy Act (the House bill) and the other called the Protect IP Act (the Senate bill) – both designed to stop online piracy. The Hollywood movie and television folks, and the recording industry, and the big cable companies, have been lobbying for such legislation. Bad guys have been posting their copyrighted material online – movies, television shows, music – and letting any download it for free. And they want to protect their intellectual property, their content. That’s what people pay for, and if anyone can just download that stuff for free they’ll be out of business soon enough. All that is lost sales. And when people grab what you spend a lot of money creating and just hand it out for free there’s no point in being in business at all.

But the devil is in the details. The House bill would allow the Department of Justice, and copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Then the court could bar online advertising networks and payment services from doing business with the infringing website, and bar search engines from linking to those sites, and require internet service providers to block access to such sites. Those sites would disappear. They’d be gone. And unauthorized streaming of copyrighted content would be a crime, with a penalty of five years in prison for ten infringements within six months. The Senate bill is much the same. It’s time to get serious about the theft of intellectual property.

But enabling or facilitating copyright infringement is kind of vague. If Wikipedia has an article explaining the history and development of some offshore site that offers free downloads of copyrighted material, are they enabling or facilitating copyright infringement? Does Wikipedia get penalized, or shut down? And what if some writer, whose newspaper article also appears online, quotes copyrighted material, perhaps a key quote from a movie, to make a point? Yes, doing that is covered by Section 107 of the Copyright Act of 1976, Limitations on exclusive rights: Fair Use – but is that changing now? And then there’s YouTube – folks upload copyrighted stuff to YouTube all the time, and often the copyright-holder fires off a note to YouTube and demands that it be taken down, and it is, immediately. That process works fine, but now we’re talking jail and shutting down YouTube permanently, for allowing such a system to exist at all. The same might apply to what folks paste on Facebook – say an amusing political cartoon. Do you shut down Facebook, for having an architecture that allows enabling or facilitating copyright infringement? How much do you want to shut down?

This wasn’t thought through very carefully. And Wikipedia and many other sites went dark for a day, protesting these bills. Stop online piracy, fine – but don’t burn down the village to save it. It was Hollywood versus Silicon Valley, and Hollywood has money to burn to get these bills passed – and that should have been that, given how things work in Washington. The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) should have passed easily. In Washington you get what you pay for, as the Supreme Court has ruled that corporations are people and money is free speech. And the “people spoke.”

But the odd thing is that hundreds of millions of people use Wikipedia and reference Google’s YouTube all the time, and the blackout woke up the carbon-based people, who also didn’t have a division of well-paid lobbyists. All the major sites going dark for a day and the others with the urgent banners and pop-ups raised a ruckus and suddenly everyone in Washington was caving:

An Internet blackout Wednesday by Wikipedia, Reddit, Mozilla and thousands of other sites against two anti-piracy bills in Congress has started to have its desired effect: Co-sponsors of the legislation have changed sides and other lawmakers have called for more debate before any vote.

Sen. Marco Rubio (R-Fla.) – who was a co-sponsor of the PROTECT IP Act – became the latest lawmaker Wednesday to pull his support. In the House, Rep. Ben Quayle (R-Ariz.), originally a co-sponsor of the Stop Online Piracy Act, pulled his name from the list of sponsors on Tuesday. A spokesman for Rep. Lee Terry (R-Neb.), meanwhile, told the Omaha World-Herald on Wednesday that the congressman is also unable to support SOPA as written.

The widespread Internet protest is even bringing new Washington voices into the fray. Mostly silent in the debate, Sen. Jim DeMint (R-S.C.) tweeted Wednesday he doesn’t back the bills.

Score one for Silicon Valley over Hollywood – or for carbon-based life forms over corporate-based life forms.

And this was cute:

At least one member of Congress will also join the blackout protest unfolding across the Web. Freshman Rep. Justin Amash (R-Mich.), who represents the libertarian wing of the GOP, changed his Facebook profile photo to a logo of the words SOPA and PIPA crossed out and he also disabled his Facebook wall so people cannot post content to it.

“These bills give the federal government unprecedented power to censor Internet content and will stifle the free flow of information and ideas,” Amash wrote in a post on his profile. “Demand that Congress and the president keep the Internet open and free.”

There are better ways to deal with online piracy. There must be. Everyone will go back and work on that. And even the corporations said so:

Backing down from bullish support of efforts to block access to rogue sites peddling stolen movies and music, two industry leaders at the State of the Net conference Tuesday urged Congress to continue work on copyright legislation.

Paul Brigner, senior vice president and chief technology policy officer with the Motion Picture Association of America, began the session with a conciliatory note, acknowledging that so-called DNS blocking is “off the table” in the debate over the Stop Online Piracy Act in the House and PROTECT IP Act in the Senate.

In fact, Brigner even stressed the movie studios’ lobby has a “commitment to technologies” that undergird the structure of the Internet – though he did stress any bill to emerge from Congress must have teeth that would actually disrupt foreign rogue websites.

DNS blocking of course refers to Domain-Name Severs – those route traffic to specific domains, and thus specific sites – and that where you can make the bad guys just disappear. You remove their domain and no one can get to them at all. And the item also cites the chief intellectual property counsel with the Global Intellectual Property Center, an arm of the US Chamber of Commerce. He’s with the guy from Hollywood. Let’s rethink this.

And here’s what’s behind that:

A spokeswoman for Google confirmed that 4.5 million people added their names to the company’s anti-SOPA petition today.

A total of 103,785 people signed We the People petitions asking the Obama Administration to protect an open and innovative internet. A petition asking President Obama to veto the Stop Online Piracy Act (SOPA) got 51,689 signatures, while 52,096 people signed the “Stop the E-PARSITE Act” petition.

At one point today there were more than 270,000 Tweets per hour related to SOPA and PIPA, up 500 percent over Tuesday. There were over 2.4 million related tweets so far today.

The carbon-based life forms were quite active, including who you’d least expect:

A group of artists including Hollywood actors, Saturday Night Live comedians, comic-book authors, musicians and others signed an open letter opposing the Stop Online Piracy Act (SOPA) and its sister bill in the Senate, the Protect Intellectual Property Act (PIPA). Actor Aziz Ansari from Parks & Recreation, fantasy author Neil Gaiman, and the Lonely Island comedy troupe – including comedian Andy Samberg from SNL all signed the letter, posted on the site Stop the Wall… The letter expresses “serious concerns” about the two bills, calling on Congress to exercise “extreme caution” before regulating the Internet.

It seems this stuff is tricky:

The artists say that their livelihoods in large part depend on copyright law, and that piracy is “deeply unfair.” At the same time, they point out that many of them have found new fans and connect with their audiences with services like YouTube and Twitter. They fear the new bills, if they were made law, could harm those sites and others, causing “collateral damage” to legitimate users – them.

“As creative professionals, we experience copyright infringement on a very personal level,” the letter reads. “We are grateful for the measures policymakers have enacted to protect our works.”

They’re grateful, but not dumb:

“These bills would allow entire websites to be blocked without due process…. Artists and creators like us who would be censored as a result.”

Ah, complexity – you have to love it – and the New York Times’ Jonathan Weisman adds another layer:

When the powerful world of old media mobilized to win passage of an online antipiracy bill, it marshaled the reliable giants of K Street – the United States Chamber of Commerce, the Recording Industry Association of America and, of course, the motion picture lobby, with its new chairman, former Senator Christopher J. Dodd, the Connecticut Democrat and an insider’s insider.

Yet on Wednesday this formidable old guard was forced to make way for the new as Web powerhouses backed by Internet activists rallied opposition to the legislation through Internet blackouts and cascading criticism, sending an unmistakable message to lawmakers grappling with new media issues: Don’t mess with the Internet.

As a result, the legislative battle over two once-obscure bills to combat the piracy of American movies, music, books and writing on the World Wide Web may prove to be a turning point for the way business is done in Washington. It represented a moment when the new economy rose up against the old.

And two can play at that game:

Google, Facebook and Twitter have political muscle of their own, with in-house lobbying shops and trade associations just like traditional media’s. Facebook has hired the former Clinton White House press secretary Joe Lockhart. Google’s Washington operations are headed by Pablo Chavez, a former counsel to Senator John McCain, Republican of Arizona, and a veteran of the Senate Commerce Committee.

And for all the campaign contributions, Washington parties and high-priced lobbyists the old economy could muster, nothing could compare to the tentacles the new economy can reach into Americans’ everyday lives through sites like Wikipedia.

It’s a new world:

“The problem for the content industry is they just don’t know how to mobilize people,” said John P. Feehery, a former House Republican leadership aide who previously worked at the motion picture association. “They have a small group of content makers, a few unions, whereas the Internet world, the social media world especially, can reach people in ways we never dreamed of before.”

Yes, corporations are people, my friends – as Mitt Romney famously said. But they’re outnumbered. That is a problem that the few giant corporations – with all their money (free speech) – didn’t anticipate.

But Matthew Yglesias has an even more interesting take on this:

There’s no evidence that the United States is currently suffering from an excessive amount of online piracy, and there is ample reason to believe that a non-zero level of copyright infringement is socially beneficial. Online piracy is like fouling in basketball. You want to penalize it to prevent it from getting out of control, but any effort to actually eliminate it would be a cure much worse than the disease.

And by that he means this:

Much of the debate about SOPA and PIPA has thus far centered around the entertainment industry’s absurdly inflated claims about the economic harm of copyright infringement. When making these calculations, intellectual property owners tend to assume that every unauthorized download represents a lost sale. This is clearly false. Often people copy a file illegally precisely because they’re unwilling to pay the market price. Were unauthorized copying not an option, they would simply not watch the movie or listen to the album.

Critics of industry estimates have repeatedly made this point and argued against the inflated figures used by SOPA and Protect IP boosters. But an equally large problem is the failure to consider the benefits to illegal downloading. These benefits can be a simple reduction of what economists call “deadweight loss.” Deadweight loss exists any time the profit-maximizing price of a unit of something exceeds the cost of producing an extra unit. In a highly competitive market in which many sellers are offering largely undifferentiated goods, profit margins are low and deadweight loss is tiny. But the whole point of copyright is that the owner of the rights to, say, Breaking Bad has a monopoly on sales of new episodes of the show. At the same time, producing an extra copy of a Breaking Bad episode is nearly free. So when the powers that be decide that the profit-maximizing strategy is to charge more than $100 to download all four seasons of Breaking Bad from iTunes, they’re creating a situation in which lots of people who’d gain $15 or $85 worth of enjoyment from watching the show can’t watch it. This is “deadweight loss,” and to the extent that copyright infringement reduces it, infringement is a boon to society.

And this analogy explains this even better:

After all, things like public libraries, used bookstores, and the widespread practice of lending books to friends all cost publishers money. But nobody (I hope) is going to introduce the Stop Used Bookstores Now Act purely on these grounds. The public policy question is not whether the libraries are bad for publishers, but whether libraries are beneficial on balance.

And the benefits of forcing copyright holders to compete with free-but-illegal downloads are considerable. Yglesias argues that the pirated market has pressured the entertainment industry to create legal options – iTunes and Hulu. So the illegal competition is a valuable consumer pressure on the industry.

And there’s this:

This is not to say that we should have no copyright law or that there should be no penalties for piracy. Used book stores may slightly depress sales of new books, but they don’t threaten to destroy the entire publishing industry. Large-scale, unimpeded, commercialized digital reproduction of other people’s works really could destroy America’s creative industries. But the question to ask about the state of intellectual property policy is whether there’s a problem from the consumer side. If infringement got out of hand, we might face a bleak scenario in which bands stop recording albums and no new TV shows are released.

But we’re clearly not living in that world. There are plenty of books to read, things to watch, and music to listen to. Indeed, the American consumer has never been better-entertained than she is today. The same digital frontier that’s created the piracy-pseudo-problem has created whole new companies and made it infinitely easier for small operations to distribute their products. Digital technology has reduced the price we pay for new works and made them cheaper to create. I can watch a feature film on my telephone.

And his final judgment:

The American economy has plenty of problems, but lack of adequate entertainment options is not on the list. SOPA isn’t just an overly intrusive way to solve a problem – it’s a “solution” to a problem that’s not a problem.

Ah, so there was no problem – and two nasty bills that had been designed to solve the nonexistent problem, badly, at great cost to how people live their lives these days – and much of the internet went dark for a day. And many millions of the pesky carbon-based life forms rose up and saved the day. And corporations aren’t people after all.

Hey, it wasn’t that dark a day after all. At least that’s how it seemed from the sidelines, where some of us just watched, trying to figure out what the real issue was. And it was, in the end, the uprising of the actual people, not the fake ones. Cool.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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