What’s bothering me about the SOPA “discussion”

There are 3 things that have really been bothering me about how the SOPA/PIPA discussion has been going so far.

  1. it’s not a discussion at all — it’s people calling each other names.
  2. it’s highly likely to have a result that is unhelpful at best, and insanely destructive at worst
  3. we’re building a completely worthless/bad roadmap for how to deal with technology policy going forward, and it’s going to get worse

Let me be very clear: SOPA is a terrible law that should not be enacted under any circumstances. It’s broken technically and misguided from a policy point of view. It not only won’t accomplish what advocates want it to accomplish, but it also will create backbreaking burdens and barriers to entry for some of our most promising technology companies and cultural movements of the coming decade.

But also: content creators & owners have a legitimate beef with how their content can be appropriated and distributed so easily by rogue actors.

Here’s the conversation we should be having: content & technology should be very aligned. Hollywood and Silicon Valley (broadly speaking — I’m talking metaphorically here) both want the same things ultimately: easier and bigger ways to share and enjoy awesome content from all sources, in a way that’s economic for everyone involved.

What we should be talking about is how to get better alignment, how to build systems and content that is better for, you know, actual human beings to use and enjoy.

But that isn’t the conversation that’s happening (and I use the term “conversation” here very loosely, since it has characteristics more like a bunch of schoolyard name calling). The conversation that’s happening is going more like this:

- content: “you people are stealing our stuff. you’re thieves”

- techies: “we’re not stealing it. we’re just building great apps for users.”

- content: “you’re ignoring the problem and helping the thieves. you’re effectively pirates, so we’re going to shut everyone down.”

- techies: “you’re acting like jackbooted fascists, embracing censorship and your’e going to end everything that’s good about culture today.”

- content: “we’re trying to protect our content — you guys are pretending like there’s no problem, then getting rich off platforms that pillage our content.”

- techies: “you don’t understand how the Internet works — how do you even live life in the 21st century? dinosaurs.”

So that’s awesome. Then you throw Congress into the mix and hilarity ensues. Because if you’re looking for folks who really do not act like they want to understand the Internet, Capitol Hill is a pretty good place to start. And then this is all devolving into a fight of pirates versus creators. Of protectors-of-democracy versus fascists. Or whatever.

What we need to be talking about is where the actual infringement problem is happening (I’ve heard from folks that the vast majority of the problem is on the order of a few dozen syndicates overseas). And how we need to be thinking about copyright law — in an age where copies are the natural order of things, as opposed to previously, when it was harder to make copies. And what sorts of law enforcement resources we need to bring to bear to shut down the activity of these real malicious actors overseas. (At root, I’m persuaded that the current issues are really law enforcement issues – we need to figure out how to enforce the laws that are already on the books to protect IP, not create new ones.)

Acting like there’s no problem isn’t the answer — there is a legitimate IP issue here. But pressuring a behind-the-times and contributions-captive legislative body to enact overly intrusive and abusable laws is even worse, both economically and civically.

What’s extremely discouraging to me right now is that I don’t really see how we can have a nuanced, technically-informed, respectful discussion/debate/conversation/working relationship. I’m not convinced that Congress is at all the right body to be taking up these issues, and am 100% convinced that they don’t currently have the technical wherewithal to make informed decisions, in any event.

So what we’re left with is one group pushing their captive legislators for new, over-reaching laws and calling technologists names. And a group reacting to that by calling names back.

I think the best that we can hope for in this scenario is that the current bill will grind to a halt and nothing will change. But I think that can’t be where we aim for the future.

Because technology policy issues are going to come up again and again and again as time goes on. (Next up, undoubtedly, is another round of privacy legislation, and I would predict the name calling will be even more intense and even less productive.)

We’re mediating more of our lives than ever through new technologies that we barely understand as technologists, let alone consumers or civic leaders. We need to figure out ways to have meaningful discussions, to try out policies that may or may not work at first and iterate quickly on them, like we do with products themselves.

I don’t have any answers here, but wanted to write down what’s been bugging me, as I think we all need to think more about what we want our lives to look like in the future.

24 comments

  1. Here’s the conversation we should be having: content & technology should be very aligned. Hollywood and Silicon Valley (broadly speaking — I’m talking metaphorically here) both want the same things ultimately: easier and bigger ways to share and enjoy awesome content from all sources, in a way that’s economic for everyone involved.”

    This strikes me as more aspirational than realistic. Hollywood, like the record industry, tends to act to to preserve existing models. Both industries have fought digital delivery via mechanisms both technical (primarily DRM) and non-technical (primarily lobbying), acquiescing to customer demand reluctantly and, at times, in impractical fashion (e.g. pre-iTunes digital delivery models or draconian DRM).

    None of which counters your point that the conversation needs to be less inflammatory and more constructive, but even without getting into their inclination to treat customers as criminals, the problem is that the content rights industries have a long history of not only being being technically ignorant [1] but being actively hostile towards progress that has proven to be largely inevitable.

    This, more than the tone of the conversation, seems to be the real problem, albeit one with no obvious solution in sight.

    [1] http://www.wired.com/entertainment/music/magazine/15-12/mf_morris?currentPage=all

  2. We don’t really need

    > a nuanced, technically-informed, respectful
    > discussion/debate/conversation/working relationship.

    I mean, that would be sweet, but it just ain’t gonna happen, notably because

    > Congress is [not] at all the right body to be taking up these issues,
    > and am 100% convinced that they don’t currently have the technical
    > wherewithal to make informed decisions

    Rather, we need is an entrepreneur to show a way for all to make some reasonable amount of money while providing some reasonable amount of freedom, with some reasonable amount of awareness of which century we’re in. Apple largely achieved this for music, with iTunes. We need that effect for other media as well.

    • The entrepreneurs exist, they’re just not getting visibility yet. In a narrower field that John knows well, Typekit for example seems to me to have figured out a way to align the interests of type designers and type fans, something which has eluded the industry for decades!

      • Typekit is a pretty neat example that I hadn’t thought of. They do seem to have paid some attention to creators, but enabled a tech solution that makes the overall market easier & bigger.

  3. This is how discussions often go when neither side has agreed on the first principals, and end up trying to control the framing.

    For example, starting by dismissing those that do not agree there is a legitimate “intellectual property” (artificial scarcity) issue in the first place.

    Personally, I don’t think there’s any possibility of compromise on the atomic issue of whether to regulate speech. Enforcing personal, not-for-profit copyright infringement will always conflict with freedom of speech. We’ve seen it in Russia silencing dissidents under the cover of piracy raids, and we’ve seen enemies and competitors trying to put each other on child porn filter lists for spite or market advantage in Scandinavia, and we’ve seen it with Universal vs. Megaupload here. Once the infrastructure is built, for whatever noble reasons, it will invariably be abused.

    I come from a time when copyright was a civil matter between companies, and comedians made fun of the FBI warnings at the beginning of video tapes.

    And, really, does a busker chasing down each and every sidewalk pedestrian make sense anyway? Artists will eventually adjust to the fact that they are buskers, now. It seems to have worked for Cory Doctorow, Jonathan Coulton, and Louis CK.

    • Unfortunately, it doesn’t seem to be “artists” who pursue all this copyright overkill, but rather “publishing companies claiming to operate on behalf of artists, though they’ve long ago been bought out of the cash flow anyway.” Artists I actually know are as annoyed by that as consumers, and additionally outraged at having their names taken in vain.

      There are, it’s true, some prominent artists who’ve spoken out in favor of copyright overkill. Perhaps their prominence makes them profitable enough to sway their sentiment, perhaps that’s their business managers talking for them — who can say? It might be interesting to have real scientific survey data on artist support (or not) of this.

      Doctorow I know, and Coulton I know, but you’ve now sent me off to explore Louis CK!

    • “Artists will eventually adjust to the fact that they are buskers, now.”

      Arggghhh, thanks for showing the clueless, harmful, inane conversation that Mr. Lilly decries.

      It’s obvious that artists now have multiple worldwide friction-free delivery mechanisms, ranging from “busking” to digital downloads to conventional physical media. And then jackbooted fascist thug a**hole pirat — sorry, here we go again — copyright infringers somehow twist that around in their sick perv — sorry! — to demand ALLl artists “get with the times”, accept rampant piracy, and compete with it by giving their work away for free or for whatever pittance this month’s hot startups are offering for content. Instead of celebrating the vast troves of Creative Commons, out-of-copyright, sample, sponsored, streamed, trial, unrestricted, etc. material available for $0, many techies scorn any artist who dares to assert “That’s all great, but it’s not for me; if you want to access my work you can pay for it on MY terms.” And the discussion goes nowhere, as Lilly points out.

      • Actually, cheap & convenient legal offerings have beaten back unauthorized copying in many markets.

        I can understand why the creative caste prefers the current situation where they can be paid over and over for working once. I’m sure anyone would love that arrangement. I don’t demand any change to that situation (I don’t have that authority, obviously), but I’d bet that (for digital content) it isn’t tenable long-term. I could be wrong, please use whatever methods work for you!

        With some caveats, though: I don’t agree that anyone ought to monitor my network usage, that law enforcement and tax dollars should be used to protect one business method over another, that blacklists should be maintained, that households should be collectively punished with digital excommunication, or that abusive takedowns should go unpunished. That sort of thing.

        I can’t really control this either, but I don’t think that my objections are unreasonable, and I don’t see how charging per digital copy is sustainable without creating a vast, authoritarian police state to enforce artificial scarcity. And I’ve been listening for one for quite a while.

  4. Re: Prominence allowing flexibility

    Doctorow has mentioned that he’s been on both sides of that: first that it would only work because he was so small and niche, now that it only works because he’s so big.

    :)

  5. I have to say, this post is really disappointing.

    First of all, there isn’t going to be a discussion. The Senate convenes January 23, to vote on PROTECT IP January 24. So I can’t tell what your advice (“we should be talking about…how to get better alignment” etc.) is supposed to mean in practice.

    Second, the moral equivalence you’re trying to draw between SOPA’s supporters and its opponents is really offensive! I’m not the one asking for the power to cut off funding and other services to Web sites I don’t like. I’m not demanding that the US government build the capability to block foreign rogue Web sites. I’m not the one with a history of abuse under the existing law. And I’m not lying about what’s in the bill.

    This is a bill drafted in an office where two staffers have *already* since transitioned to jobs as industry lobbyists. It is not just a bad idea; it gives every appearance of being the product of corruption. It has got to be defeated.

    • I’m not trying to draw an equivalence at all. I say very clearly that the bill is BAD, with horrible consequences. And that it’s mostly a law enforcement issue, not a legislative one.

      But pretending like copyright holders don’t have a problem is just completely counter productive, and will continue this situation the way it’s going.

      What I mean by alignment is this: we need to figure out whether existing laws address some of the very real issues that content owners have. And if they do, we need to prioritize law enforcement, in particular for overseas bad actors.

      But pretending like content owners are the only ones that abuse the law is ridiculous and counter-productive. And obviously the vote set up for PIPA is awful and destructive.

      But just saying those things, and getting past this next vote, won’t make any of the structural problems go away.

  6. I feel like you’re trying to create a non-existent middle-ground here. Counterfeiting (where unlicensed content is sold to unsuspecting customers who believe it is licensed) is not a part of the discussion because everyone, even the most ardent copyright reformer, agrees that it’s wrong. It’s illegal to sell counterfeit goods essentially everywhere in the world, and those laws are effectively enforced in those nations that operate under the rule of law. You can point to places like China, but the reality is that China doesn’t even have the basic compliance infrastructure to ensure that food products haven’t been adulterated with poisons, so complaining that they’re not prioritizing counterfeit media when they can’t stop counterfeit (poisoned) milk seems a bit inhumane.

    In the Western world, the fundamental copyright issue is price and quality of service. Big Content wants to produce a low quality product at a price beyond what the market is willing to accept, pirates offer a substantially better product that can be acquired much more conveniently for no money. Big Content argues that they can’t compete with this, but the truth is that they’ve never been willing to compete at all, content downloading is just the latest in a list of wars they’ve fought, including against used CD sales and home taping from radio/tv. In reality, consumers have repeatedly proven to be ready and willing to pay for quality content at a fair price whenever it is offered, which is sadly quite rarely.

    So, to return to what seems like the question that started this blog post: Does Big Content have a problem? Yes it does, but that problem is not with the non-commercial infringement that they are seeking to legislate away. Their problem is with their own unwillingness to produce the content people want at the price they are willing to pay. Instead of viewing downloads as stolen items (a fundamentally broken analogy due to the zero marginal cost of digital goods), they should be viewed as sales the content providers walked away from.

    • You and @Simon live in the past, bringing up all the tired evildoings of content companies (you forgot to mention the Sony rootkit!). Right now I can buy almost any song unprotected for $0.99 and buy many movies in an easily rippable form for under $10. The consumer spoke, the techies won!… yet billions of illegal downloads continue.

      “[pirated] downloads… should be viewed as sales the content providers walked away from”. Says who? You have your head deep in the sand if you think most piracy is anything other than “When I want something, I don’t want to pay for it” (“Been Caught Stealing”, Jane’s Addiction). As such, unlike consumers voting with actual money, piracy does little to reward companies that price reasonably and treat their customers fairly.

  7. My impressions is that it’s not as black and white as content vs techies – a lot of content creators are against SOPA, those who have already come to grips with how to live with the internet, and acknowledging that abolishing piracy just isn’t possible.

    The problem is with those that after all these years, can’t accept that their business has to adapt to changing times. Look at the recording industry – how many millions did they spend, trying to crush sites like Napster, before Apple managed to convince them that they could make money selling music online. But the music industry should have been the ones pioneering that stuff – not desperately fighting it until someone else shows them the way…

    And that’s the mindset of many of the pro-SOPA organisations. No vision, no interest in how new technologies and social changes can be business opportunities for them. It’s all about preserving the status quo, instead of looking for where the *next* revenue stream could come from…

  8. “Content” is a lot bigger than the “content” _publishers_ which are trying to push through the current set of bad laws. In fact, I’d say that of all the content I consume on a weekly basis, only 1-5% comes from those content publishers. I might be an outlier with that, but it definitely holds that the community of content creators is vastly larger than what is represented by the big content publishers, and that the _rest_ of that community is not doing any name-calling.

    I’m a content creator myself, with a couple of thousand pretty decent travel photos online, and I care about these not being reused unasked for. Every other week, I see my photos being embedded out of context by a new tech startup (or by a new version of a big website by established names like Microsoft). And then I (sometimes) send them a polite email informing them that I’m not okay with that, and (always) use the technological measures already at my disposal to stop to it.

    I’d love it if there was someone representing people like me willing to start an industry-wide conversation with tech companies. Access-Control headers for images, Yet Another standardized file like robots.txt that I could use to indicate my preferences, whatever. I’m not calling techies any names, and I bet that there’s _very_ few content creators who do either, even amongst those who _are_ represented by the big publishers.

    When did we let the middlemen get so much power?

  9. John, I fully agree with your post.

    If I were a lawmaker with no strong ties to either industry, I would be confused at best and probably leaning towards the model I understand better (i.e. the more traditional arguments, which seems to be the content ones). And I’d probably be angry at all this bickering and the lack of constructive proposals or compromises that everyone could swallow.

  10. Here’s my issue in regards to “artists”. I’m a “content creator texture artist” for 3D virtual worlds. I work out of my bedroom and whatever little income is my sole method of paying for a roof over my head and food on my table as I am figuring out a way to build a portfolio and finish school to get a “real job” like everyone retaliates that I should do. Some fucking kid in Egypt or Eastern Europe can easily use software to extract and rehash my 2D textures in his own 2D texture, upload it and undersell me in the same market. I file a DMCA Takedown I get falsified counter DMCA in return and the inbetween company says go get a cease and desist letter form a lawyer, lawyer says go get 4 figure amounts to pay for everything…Then what do you do? Roll over and continue to be assraped sideways in the name of “busking” while some little shit is making a small fortune from the payouts because his cost of living is much lower than mine? Unlike other “major artists” my marketing strategy isn’t paid for in advance, I have to pay all out of pocket to stay “well known” as the source of the art being used as ripped templates for other lazy ass designers who will nail a job in their respective country regardless if they can reproduce the work because the mentality is its always ok to rip it. I don’t see how I am benefiting from the system now nor with this new policy. I’m still stuck in the middle. What’s your take on that?

    • Personally, I think it’d be dumb for a company to buy content from a plagiarist (once known), since they likely can’t continue to do consistent work later, so the relationship has no value.

      I think there are also plenty of online communities and other forums for exposing a plagiarist. I know BoingBoing, for one, has frequently taken Urban Outfitters to task for just that.

      Now, if it’s a remix of your design, maybe that isn’t a complete ripoff.

      It also depends on how much of your time and other resources you invest in your content, and how much you want to spend policing your content.

      If you aren’t yet established, but you are still paying the bills with your content, maybe the problem isn’t as big as it seems?

    • I have several thoughts. One is that since, by your analysis, SOPA neither helps nor hurts you, the unfortunate situation you describe doesn’t really bear on the SOAP discussion. SOPA remains to be assessed on its own “merits” (or its howling lack of merit, as case may be).

      The essential thread in your tale is that the pirate lives outside the reach of the law under which you live. The Internet creates the possibility of crime across jurisdictional borders, which is not well handled by present legal assumptions. An international agreement has a better chance of combating this problem. But it still has to be a *sane* agreement … not, say, ACTA, which is indeed “international,” but like SOPA is just not sane.

  11. I think the bickering, while not really the issue, is greatly hurting the anti-SOPA effort. Today’s generation of politicians didn’t grow up with technology and have no desire to understand it. Unfortunately, individuals who realize that SOPA is about censorship and not piracy, don’t have the patience or verbal tools that are needed when dealing with capital hill. I am guilty of this myself. And what we have ended up with is the “name calling” you detest. Even with many large companies opposing SOPA, it will probably get passed anyway, which really sucks.

  12. This post (and most of the ensuing comments) gives me the faint glimmer of hope that rational, thinking people exist in the world – just enough to prevent me from destroying the Earth in a fit of frustration, and starting the whole damn thing over from scratch.

    Bravo!

  13. Personally? Copyright should have a limit. None of this 80 years after you are dead nonsense. Copyright wasn’t invneted so you could control something indefinitely. No way, read it, it’s to promote creative works for the benefit of society.

    I’m an artist and I un-approve SOPA/PIPA and anyone trying to support control over people’s lives.