The White House recently released a response to two petitions protesting the Stop Online Piracy Act (SOPA). The statement agreed with the petition signers that anti-piracy laws must not increase censorship or risk security flaws by tampering with the domain name system (DNS), key parts of both SOPA and the Senate’s proposed PROTECT IP Act (PIPA). This is a fantastic sign that shows that the objections of ordinary, clued-in Internet users can make a difference in stopping misguided legislation.
The statement, co-authored by Victoria Espinel, the IP Enforcement Coordinator, Aneesh Chopra, the Chief Technology Officer, and Howard Schmidt, the Cybersecurity Coordinator, affirms the message that legislation tampering with the DNS poses real risks to the security and stability of the Internet. It also recognizes that, regardless of intent, copyright legislation can affect free speech, and that it’s therefore important for copyright enforcement laws to be narrowly tailored and provide due process.
The White House also noted that laws can give private parties far too much litigation power—power that can sue startup companies out of existence and stifle innovation. This is critically important, but then the statement makes a reference that could undermine this point. It notes that content producers and intermediaries should both have voluntary best practices measures. That’s a perfectly legitimate stand-alone proposition, but only if it isn’t taken to mean the sort of “voluntary measures” that are crafted to create legal pressures for intermediaries to fold under pressure from potential plaintiffs.
There’s another part of the statement that I think deserves a little dissection. It’s the appeal to the petitioners to provide their own proposals for combating online piracy:
So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right.
Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet.
There’s something that I think is just slightly missed here. There’s nothing wrong with trying to crowdsource solutions to online infringement, and maybe the signers of these petitions isn’t a bad place to start. But the White House, and Congress, and others should know that there’s only going to be a smaller subset of people angry about SOPA and PIPA who are interested in finding solutions to infringement. Not because they’re only concerned with saying “no” rather than “yes,” but because they’re not concerned with copyright—they’re concerned with the Internet.
The reason they’re saying “no” to PIPA and SOPA isn’t because they’re extremely picky and opinionated about the proper methods of copyright enforcement; it’s because PIPA and SOPA so fundamentally alter the technical and normative structures of the Internet—the milieu within which they speak, work, and play. Saying “no” to SOPA doesn’t necessarily mean they should have something they can say “yes” to on copyright enforcement; just as often, these are the people saying “yes” to freeing speech in repressive countries; to educating new generations of makers, scholars, artists, and inventors; to just making it easier to communicate with distant friends and family.
Now, a number of the people who are saying “no” to SOPA and PIPA will have contributions to make in copyright law; but again, we only hurt ourselves by taking too narrow a focus. You’ll find a larger wealth of solutions if, instead of asking “who has ideas about how to curb foreign infringement online?”, you ask, “who has ideas about how to make sure artists get their fair share?” or “who has ideas about how to expand the creation and distribution of creative works?”
The lesson we need to take with us as we continue to discuss these issues (and yes, these particular bills), is not that hundreds of thousands of people care so much about copyright law (would that they did—we’d likely have much clearer licensing laws by now if that were the case); it’s that copyright has far-reaching powers that can intersect with and even interfere with important platforms, tools, and even fundamental human rights. The vast majority of people generally don’t care deeply about loitering laws or zoning laws, they care deeply about free speech in public places. They don’t care deeply about patent law; they care deeply about access to medicines.
So while I’m thrilled that the White House has issued this statement cautioning against the excesses of SOPA and PIPA, I’m also hoping that this call for other solutions can move forward with that larger understanding that these efforts don’t happen in a subject matter vacuum. We’re past the point where a few eminences in a cul-de-sac of legal arcana can make good policy on their own. Laws and policies that touch the Internet are touching technologies that have their own implications for the rest of the system and the rest of the world; these laws and policies also touch matters of speech and expression that have other wide-ranging consequences that might not initially occur to someone who has her nose stuck in a volume of Title 17. Here’s to hoping that we can apply this lesson moving forward.