Many of the critics of the Stop Online Piracy Act (SOPA), and other legislation seeking to combat intellectual property violations on the Internet, say they are fighting efforts to “censor” the web. Assuming there must be a definition of censorship with which I was unaware, I went to Wikipedia to check the crowd-sourced meaning. Alas, I’ll have to wait another day as Wikipedia has gone dark to protest the bill.
SOPA is many things, but if words still have meaning it cannot be fruitfully described as censorship. So what are we to make of federal efforts to balance the interests of intellectual property (IP) holders with the interests of the public at large in the digital age?
It’s useful to start with areas of broad agreement. Both the Internet-industry opponents of SOPA and the content-creation industry (the motion-picture and recording industry folks, for example) agree that IP violations on the Internet are a genuine problem.
The extent of the problem is subject to debate, and the perception typically depends on where one sits. Technology firms can make money when content flows unencumbered, and oftentimes the more unencumbered the better; content creators do not make money if they can’t earn rents from its exchange, and so content creators see Internet piracy as a significant threat.
The public’s interest is in between. The public wants sufficiently robust property protections in place so creators can raise and sustain capital to generate the content the public wants. But the protections must not be so strong that they needlessly hinder the exchange and flow of ideas, images, sounds, and other information from which the public benefits.
Where those lines get drawn — and how those lines are enforced — is the source of contention with respect to SOPA.
The SOPA fight comes a little over a decade after that last rhetorically bloody battle over IP protection and the Internet, the Digital Millennium Copyright Act. The “information wants to be free” crowd vehemently opposed that bill at the time, and similar claims that it would “break” the Internet were voiced. The legislation passed, and the Internet emerged largely unscathed.
Despite the at times overwrought rhetoric of the SOPA critics, they are right to worry about overly blunt regulation of the Internet. Former senator Chris Dodd has led the push for SOPA from his new perch atop the motion picture lobby. Dodd is no stranger to exceedingly broad and imprudent regulation (viz. his crowning Senate achievement, the Dodd-Frank Act regulating the financial-services industry).
The good news here is that the criticism of the legislation has prompted changes in the bills floating around Capitol Hill over the last several months, addressing some of the key legitimate concerns.
It has also prompted an alternative from Sen. Ron Wyden (D., Ore.) and Rep. Darrell Issa (R., Calif.), whose so-called OPEN Act would empower the International Trade Commission to target the system of payments that enables foreign IP pirates to profit from property violations. It’s a sensible incremental step toward enforcing the rights of IP holders in cyberspace.
Of course, if the OPEN Act proves insufficient as a guarantor of reasonable protections for content creators, we’ll be right back where we are today soon enough. So now is a good time for further creative thinking about how strongly and in what ways intellectual property ought to be protected in the Internet age.
Given the recently voiced White House objection to SOPA, the search for a way forward is on. The OPEN Act should emerge as the sensible alternative. There’s a lot of cynicism about democracy today, much of it deserved. But the OPEN Act compromise indicates that despite the noisy clang of politics that’s so off-putting to some, our democracy still works pretty well sometimes. To understand why, go to Wikipedia tomorrow and look up “Madison, James.”
— Nick Schulz is DeWitt Wallace Fellow at the American Enterprise Institute and editor of American.com.