Thursday, January 26, 2012

Clay Shirky: Why SOPA is a bad idea (English)

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I'm going to start here. This is a hand-lettered sign that appeared in a mom and pop bakery in my old neighborhood in Brooklyn a few years ago. The store owned one of those machines that can print on plates of sugar. And kids could bring in drawings and have the store print a sugar plate for the top of their birthday cake.

But unfortunately, one of the things kids liked to draw was cartoon characters. They liked to draw the Little Mermaid, they'd like to draw a smurf, they'd like to draw Micky Mouse. But it turns out to be illegal to print a child's drawing of Micky Mouse onto a plate of sugar. And it's a copyright violation. And policing copyright violations for children's birthday cakes was such a hassle that the College Bakery said, "You know what, we're getting out of that business. If you're an amateur, you don't have access to our machine anymore. If you want a printed sugar birthday cake, you have to use one of our prefab images -- only for professionals."

So there's two bills in Congress right now. One is called SOPA, the other is called PIPA. SOPA stands for the Stop Online Piracy Act. It's from the Senate. PIPA is short for PROTECTIP, which is itself short for Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property -- because the congressional aides who name these things have a lot of time on their hands. And what SOPA and PIPA want to do is they want to do this. They want to raise the cost of copyright compliance to the point where people simply get out of the business of offering it as a capability to amateurs.

Now the way they propose to do this is to identify sites that are substantially infringing on copyright -- although how those sites are identified is never fully specified in the bills -- and then they want to remove them from the domain name system. They want to take them out of the domain name system. Now the domain name system is the thing that turns human-readable names, like, into the kinds of addresses machines expect --

Now the problem with this model of censorship, of identifying a site and then trying to remove it from the domain name system, is that it won't work. And you'd think that would be a pretty big problem for a law, but Congress seems not to have let that bother them too much. Now the reason it won't work is that you can still type into the browser or you can make it a clickable link and you'll still go to Google. So the policing layer around the problem becomes the real threat of the act.

Now to understand how Congress came to write a bill that won't accomplish its stated goals, but will produce a lot of pernicious side effects, you have to understand a little bit about the back story. And the back story is this: SOPA and PIPA, as legislation, were drafted largely by media companies that were founded in the 20th century. The 20th century was a great time to be a media company, because the thing you really had on your side was scarcity. If you were making a TV show, it didn't have to be better than all other TV shows ever made; it only had to be better than the two other shows that were on at the same time -- which is a very low threshold of competitive difficulty. Which meant that if you fielded average content, you got a third of the U.S. public for free -- tens of millions of users for simply doing something that wasn't too terrible. This is like having a license to print money and a barrel of free ink.

But technology moved on, as technology is want to do. And slowly, slowly, at the end of the 20th century, that scarcity started to get eroded -- and I don't mean by digital technology; I mean by analog technology. Cassette tapes, video cassette recorders, even the humble Xerox machine created new opportunities for us to behave in ways that astonished the media business. Because it turned out we're not really couch potatoes. We don't really like to only consume. We do like to consume, but every time one of these new tools came along, it turned out we also like to produce and we like to share. And this freaked the media businesses out -- it freaked them out every time. Jack Valenti, who was the head lobbyist for the Motion Picture Association of America, once likened the ferocious video cassette recorder to Jack the Ripper and poor, helpless Hollywood to a woman at home alone. That was the level of rhetoric.

And so the media industries begged, insisted, demanded that Congress do something. And Congress did something. By the early 90s, Congress passed the law that changed everything. And that law was called the Audio Home Recording Act of 1992. What the Audio Home Recording Act of 1992 said was, look, if people are taping stuff off the radio and then making mixtapes for their friends, that is not a crime. That's okay. Taping and remixing and sharing with your friends is okay. If you make lots and lots of high quality copies and you sell them, that's not okay. But this taping business, fine, let it go. And they thought that they clarified the issue, because they'd set out a clear distinction between legal and illegal copying.

But that wasn't what the media businesses wanted. They had wanted Congress to outlaw copying full-stop. So when the Audio Home Recording Act of 1992 was passed, the media businesses gave up on the idea of legal versus illegal distinctions for copying because it was clear that if Congress was acting in their framework, they might actually increase the rights of citizens to participate in our own media environment. So they went for plan B. It took them a while to formulate plan B.

Plan B appeared in its first full-blown form in 1998 -- something called the Digital Millennium Copyright Act. It was a complicated piece of legislation, a lot of moving parts. But the main thrust of the DMCA was that it was legal to sell you uncopyable digital material -- except that there's no such things as uncopyable digital material. It would be, as Ed Felton once famously said, "Like handing out water that wasn't wet." Bits are copyable. That's what computers do. That is a side effect of their ordinary operation.

So in order to fake the ability to sell uncopyable bits, the DMCA also made it legal to force you to use systems that broke the copying function of your devices. Every DVD player and game player and television and computer you brought home -- no matter what you thought you were getting when you bought it -- could be broken by the content industries, if they wanted to set that as a condition of selling you the content. And to make sure you didn't realize, or didn't enact their capabilities as general purpose computing devices, they also made it illegal for you to try to reset the copyability of that content. The DMCA marks the moment when the media industries gave up on the legal system of distinguishing between legal and illegal copying and simply tried to prevent copying through technical means.

Now the DMCA had, and is continuing to have, a lot of complicated effects, but in this one domain, limiting sharing, it has mostly not worked. And the main reason it hasn't worked is the Internet has turned out to be far more popular and far more powerful than anyone imagined. The mixtape, the fanzine, that was nothing compared to what we're seeing now with the Internet. We are in a world where most American citizens over the age of 12 share things with each other online. We share written things, we share images, we share audio, we share video. Some of the stuff we share is stuff we've made. Some of the stuff we share is stuff we've found. Some of the stuff we share is stuff we've made out of what we've found, and all of it horrifies those industries.

So PIPA and SOPA are round two. But where the DMCA was surgical -- we want to go down into your computer, we want to go down into your television set, down into your game machine, and prevent it from doing what they said it would do at the store -- PIPA and SOPA are nuclear and they're saying, we want to go anywhere in the world and censor content. Now the mechanism, as I said, for doing this, is you need to take out anybody pointing to those IP addresses. You need to take them out of search engines, you need to take them out of online directories, you need to take them out of user lists. And because the biggest producers of content on the Internet are not Google and Yahoo, they're us, we're the people getting policed. Because in the end, the real threat to the enactment of PIPA and SOPA is our ability to share things with one another.

So what PIPA and SOPA risk doing is taking a centuries-old legal concept, innocent until proven guilty, and reversing it -- guilty until proven innocent. You can't share until you show us that you're not sharing something we don't like. Suddenly, the burden of proof for legal versus illegal falls affirmatively on us and on the services that might be offering us any new capabilities. And if it costs even a dime to police a user, that will crush a service with a hundred million users.

So this is the Internet they have in mind. Imagine this sign everywhere -- except imagine it doesn't say College Bakery, imagine it says YouTube and Facebook and Twitter. Imagine it says TED, because the comments can't be policed at any acceptable cost. The real effects of SOPA and PIPA are going to be different than the proposed effects. The threat, in fact, is this inversion of the burden of proof, where we suddenly are all treated like thieves at every moment we're given the freedom to create, to produce or to share. And the people who provide those capabilities to us -- the YouTubes, the Facebooks, the Twitters and TEDs -- are in the business of having to police us, or being on the hook for contributory infringement.

There's two things you can do to help stop this -- a simple thing and a complicated thing, an easy thing and a hard thing. The simple thing, the easy thing, is this: if you're an American citizen, call your representative, call your senator. When you look at the people who co-signed on the SOPA bill, people who've co-signed on PIPA, what you see is that they have cumulatively received millions and millions of dollars from the traditional media industries. You don't have millions and millions of dollars, but you can call your representatives, and you can remind them that you vote, and you can ask not to be treated like a thief, and you can suggest that you would prefer that the Internet not be broken.

And if you're not an American citizen, you can contact American citizens that you know and encourage them to do the same. Because this seems like a national issue, but it is not. These industries will not be content with breaking our Internet. If they break it, they will break it for everybody. That's the easy thing. That's the simple thing.

The hard thing is this: get ready, because more is coming. SOPA is simply a reversion of COICA, which was purposed last year, which did not pass. And all of this goes back to the failure of the DMCA to disallow sharing as a technical means. And the DMCA goes back to the Audio Home Recording Act, which horrified those industries. Because the whole business of actually suggesting that someone is breaking the law and then gathering evidence and proving that, that turns out to be really inconvenient. "We'd prefer not to do that," says the content industries. And what they want is not to have to do that. They don't want legal distinctions between legal and illegal sharing. They just want the sharing to go away.

PIPA and SOPA are not oddities, they're not anomalies, they're not events. They're the next turn of this particular screw, which has been going on 20 years now. And if we defeat these, as I hope we do, more is coming. Because until we convince Congress that the way to deal with copyright violation is the way copyright violation was dealt with with Napster, with YouTube, which is to have a trial with all the presentation of evidence and the hashing out of facts and the assessment of remedies that goes on in democratic societies. That's the way to handle this.

In the meantime, the hard thing to do is to be ready. Because that's the real message of PIPA and SOPA. Time Warner has called and they want us all back on the couch, just consuming -- not producing, not sharing -- and we should say, "No."

Thank you.


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