Saturday, December 17, 2011

Pirates of the 21st Century and What to Do About Them: SOPA and the Search for an Anti-Piracy Strategy in the Information Age

Both houses of Congress are currently taking up Bills (PROTECT-IP [Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act] in the Senate; SOPA [Stop Online Piracy Act] in the House) to bring the Constitution’s grant of power in Article One, Section Eight (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”) up to date in a world of easy file sharing and copyright infringement. The language could not be more unequivocal—“exclusive Right”—and the topic received no debate in the Constitutional convention. The proposal, as they say, was a fait accompli and in an age of scribblers, pamphleteers, and all manner of inventors (Benjamin Franklin was only the most prolific of Convention attendees) it is not hard to figure out why.

There can be no serious question as to the right of content producers (the catchy 21st century way to describe artists, writers, and inventors) to earn whatever the marketplace will bear for their productions. And there can be no serious question as to the right of Congress to legislate for their protection. Yet, the anti-SOPA polemicists have attempted to argue just those very points. In my view, this discredits them almost entirely and leaves the intellectual debate open to the pro-SOPA advocates who are themselves advocating enforcement mechanisms that leave much to be desired and—contrary to the diatribes of the other side—centralizes great power in the Attorney General’s office, not the entertainment industry. In fact, the government is very open about that aspect of SOPA. Maria A. Pallante, the Register of Copyrights, testified before Congress to this effect, saying: “The response provided by SOPA is serious and comprehensive. It requires all key members of the online ecosystem, including service providers, search engines, payment processors, and advertising networks, to play a role in protecting copyright interests—an approach I endorse. Combating online infringement requires focus and commitment. It should be obvious that we cannot have intermediaries working at cross-purposes.” Here is the interesting bit: “SOPA is also measured. It appropriately provides much broader tools and flexibility to the Attorney General than it provides to copyright owners. This is a sound policy choice at this time. The Department of Justice has experience fighting online infringers, will use resources carefully [HA!], must exercise prosecutorial discretion in bringing actions, and must plead its case to the court and obtain a court-issued order before proceeding. Put another way, while the copyright industries are extremely important (and certainly a point of pride with respect to the U.S. economy), SOPA recognizes that many sectors rely on, invest in, and contribute to the success of the Internet.” And finally: “It is for this reason that SOPA puts only limited tools in the hands of copyright owners, and provides the Attorney General with the sole authority to seek orders against search engines and Internet service providers.”

Pallante even agrees with the harebrained paranoia directed at the legitimate owners of stolen material: “Unlike the Attorney General, however, copyright owners would not be able to block domain names or websites or otherwise affect the underpinnings of the Internet. Nor does SOPA permit monetary relief for copyright owners. By targeting sites dedicated to infringement and permitting injunctive relief only, it limits the incentive for copyright owners to overreach.” A representative piece of absurdist non-sense from the “other side” can be found on the reliably misguided Huffington Post, where Dean Baker—whose chief claim to expertise is that he is something called a “Progressive”—writes: “While the name [Stop Online Pirarcy Act] may lead the public to believe that Congress is trying to keep our email pure and our computer screens safe, the real story is that the 1 percent are again trying to rig the rules so that they get as many dollars as possible from the rest of us.” The Bill, of course, does not aim at either of those things, which means Baker is either a lout or engaging in an ineffective bit of reductio ad absurdum. Also, the property owner has an absolute right to charge whatever he likes, just as the potential consumers have just as much right to pay him what he asks—even though they would have gladly paid double—or not buy from him at all at any price.

The biggest problem with the SOPA debate among politicians and pundits is a fundamental misunderstanding—by nearly everyone writing about the topic—of what is actually going on in the marketplace and the government’s obligations to property owners. And that is what is being discussed here, property owners. The government guarantees limited monopolies to individuals, both real and legal (i.e. corporations), for their artistic productions and inventions so that if I write the great American novel, I am the one who can sell it to whomever for whatever price I am willing and able to negotiate and will not have to worry about everyone else printing off “free” copies or downloading it without paying me or to whomever I license the rights. The reason the pharmaceutical companies are backing SOPA is obvious—they see it as their general interest to bolster all copyright and patent protections because without them, their ability to sell and develop products will be minimized if not completely obliterated. People in countries other than the United States, whose government either buy their drugs for them or break international patent protections and manufacture them illegally might scoff—but they are free-riding off of the innovation which the rule of patent law makes possible in the United States.

But, SOPA seeks to shift the tough game of policing patent and copyright violations off of the shoulders of the property owners—where it has traditionally always belonged, as in famous cases surrounding such giants as Alexander Graham Bell and Thomas Edison—to the Attorney General. In addition to that innovation, SOPA also seeks to change the focus away from violators (many of the biggest violators are overseas) of copyright and patent laws to the intermediary, U.S. based companies that presumably unwittingly and unknowingly are used to transact the illegal business of online piracy. This means companies like Google, Facebook, and Paypal. Under this scheme, the Justice Department will act as a go-between for property owners and the intermediary facilitators by presenting evidence to a Judge and seeking injunctions on companies that fail to respond to five-day warning notices that they are in violation of the act because their users are violating someone’s or some company’s property rights. What is actually bothersome about SOPA is not, as Mr. Baker contends, that “the problem seen by the top executives at Disney and the other promoters of the SOPA is that they want to make more [money],” or as Michael Hiltzik writes in the L.A. Times, “Right there you can see that SOPA would place a nuclear weapon in the hands of copyright holders to use against websites they don’t like,” but that it passes off responsibility to protect intellectual property rights from the owners to the taxpayers. Also, instead of trying to come up with ways to get at the true international culprits of most of the large-scale piracy on the internet, property-owning backers of SOPA are trying to hamstring social networking and commerce facilitating companies and websites that criminals are abusing as a miniscule part of their otherwise totally legitimate business.

Do the intermediaries have a responsibility when they are made aware of their being made accessories to crimes? Of course, though under the current law, passed in 1998, they are exempted from liability--see this helpful piece on the matter. If they are notified in writing by the property owners and do nothing to disassociate themselves with criminals, then they are just as much a party to the criminal activity as if they themselves were perpetrating it. Should they be more pro-active? Probably, yes. But the only way to force them is to make it a legal and fiscal nightmare to not be more pro-active. One way the government could help is to define the law better and make it easier from property-owners to sue intermediaries in court when the offender lives in another jurisdiction and the intermediary makes no good faith effort to stop itself from being used for criminal activity.

When a person steals—let us be clear, they are stealing—someone else’s intellectual property, the proper recourse is to take that person to court and get damages and legal expenses awarded to them. If the government wishes to stiffen criminal penalties for copyright and patent violators, then the Congress should do that. Certainly some stiff financial penalties and real jail time would undoubtedly be a step in the right direction. This is not a victimless crime. Unlike recreational drug use and prostitution, intellectual property theft raises the prices of artistic productions for all of us. Beyond that, it drives producers from a marketplace where their ability to profit from their efforts is greatly reduced. The resulting cultural loss is incalculable. But more fundamentally—it violates a sacrosanct right a man has to the products of his own mind and the rewards that come from them when he offers them in trade to others.

The anti-SOPA people seem more concerned with pretending that the issues at stake are, somehow, about censorship—as if protection of property from theft could ever be a tool of censorship, which is the governmental suppression of intellectual property. A classic misrepresentation of the principles and rights at stake in this argument appeared on The Economist magazine’s blog: “The battle over SOPA is a fight between two hugely creative forces. The content companies want to protect a business that is the core of modern culture; the software companies are determined to defend the innovative power of an industry that has transformed the world in the past few decades. Tension between them is inevitable; but a redrafted law could surely deal fairly with both.” First of all, the only people with any rights at stake are the property owners. Software companies are not in any tension with them, unless they are claiming a non-existent right to facilitate intellectual property theft and be blameless even if they know who is doing it, where, when and how. This is a “right” no property respecting society could ever countenance. Ironically, embracing such a ridiculous notion would make Google’s own highly protected secrets—the code for the search engine for instance—as open to non-protection and theft as anything else.

The government clearly has a role in making sure that the copyrights and patents it grants are respected as inviolately as is any real estate anyone owns in the United States. Domestically, it already does that relatively well—keeping in mind that rights violations are always going to occur and always have since 1789—but internationally the government seems feckless and weak. That needs to end and the penalties need to be Draconian. Any government that actively subverts copyrights and patents ought to be thoroughly condemned and isolated internationally—particularly in such areas as medicine. The damage of violating patents of that nature is nightmarishly horrific when one contemplates the eradication of diseases we have seen in just the last century. No one, particularly no highly trained technical expert, can, should, or will work for free or for any salary other than what a free and rights protecting marketplace rightly rewards for highly valuable and beneficial works and inventions. To expect otherwise is to live in a fantasyland that never existed and which will never exist. Man uses his mind to reason, to live for his own sake, to create values and trade them with others. This is how he survives—indeed, how he prospers. Some men have a specialized knowledge that allows them to create tremendous values that nearly everyone might want or benefit from. Those men, or the companies who have license to their work, ought not to be denied the remunerative benefits associated with those values merely because everyone might want or need them. Without a pre-existing guarantee to reap the tremendous rewards, the value would almost certainly have never been created in the first place. This seems too easily forgotten in a world where people like Dean Baker glibly prattle on about a manipulative “1 percent.” That is tremendously unfortunate. It obscures the creative process by which the world’s billions came into being and are—by and large—fed, clothed, and vaccinated against diseases that routinely wiped out untold numbers of people for millennia--see here and here for just two of the more prominent examples.

But we ought not to try to make the Attorney General of the United States the copyright bully of the world, either. Property owners are obligated to protect their property by filing suit against domestic violators, by notifying third parties that they are being exposed to civil litigation by bad actors, and by then calling in the government through the courts to enforce their rights on all concerned. That system has served the republic well for more than two centuries and the internet—despite all the glazed over “wave of the future” befuddlement—does not fundamentally alter the right and wrong of the situation. Property owners ought instead to demand, and receive, easier mechanisms of bringing suit against those stealing or knowingly facilitating the theft of their property. Property owners ought instead to demand, and receive, stiffer criminal penalties and fines against the same. And property owners ought instead to demand a vigorous international campaign, led by the Federal Government, against countries that flout copyright and patent protections up to and including the suspension of all intercourse with such regimes. But, at the end of the day, all American property owners ought to understand that their only true protection is the American people and their government. Engaging in trade with a property destroying murder machine like China is a dubious proposition at best and it strains credulity in the vein of Claude Reins in Casablanca to accept that any of them are truly shocked that their property rights are destroyed and disregarded in such places. All they can truly expect is that the government will protect their rights absolutely in the portions of the globe where that government has an established legal supremacy.