NR Digital

Copyright for the Internet Age

by Joe Karaganis
What we like doing online should be legal

January 18 marked the first anniversary of the Internet Blackout Day, when Wikipedia and other websites shut down in protest against SOPA — the Stop Online Piracy Act. Although the Internet activists beat SOPA, the core concerns of both sides remain unresolved. Content-industry groups complain about widespread piracy. Activists raise fears about the consequences of stronger copyright enforcement. Despite the legal stalemate, there is no status quo. In July 2011, Google received about 130,000 requests per week to remove links to infringing content. By December 2012, it was receiving 2.5 million per week. In January 2012, hundreds of thousands of users of the cloud-storage service Megaupload lost their files when the Department of Justice shut the site down for hosting infringing materials. Hundreds of thousands of Americans, and millions of Europeans, face private copyright enforcement in the form of accusation letters and demands for payment. A copyright-alert system that enlists U.S. Internet-service providers in identifying, warning, and punishing alleged online infringers is scheduled to launch in early 2013. Even without SOPA, we are entering an era of hyperactive copyright enforcement, scaled up and automated to meet the boundless new capacities for speech, association, and — yes — infringement on the Internet.

And so we face a dilemma. When we download a movie we infringe. But we can also infringe when we forward an e-mail or repost a funny picture to Facebook or upload a video of kids dancing to a pop song. We are safe as paying consumers of our rich audiovisual culture but not as active users of it — and we are all active users now. This mismatch between law and practice has persisted, more or less, because enforcement has been rare. The vast array of casual infringements passed below notice. But now, as the capacity for enforcement scales up, we need to be better at setting boundaries around the spheres of activity we value. Last winter’s debate over SOPA was in part about whether Internet intermediaries (Internet-service providers, search engines, social-networking sites, and other services) would become preemptive monitors and censors of their users’ activity. The tentative answer was no. But we’ll need to do better than that.

All of this is a far cry from the narrow purposes of intellectual property (IP) outlined in the Constitution and early copyright law. The first U.S. copyright law, passed in 1790, established a 14-year term of protection, renewable for another 14 years. It was about short-term incentives — about weighing monopolies on speech against its “natural condition” of circulation. Over the past century, this prioritization of the public domain was reversed. Now we have copyright terms that make the public domain a mostly historical artifact, a century out of date. Now we can challenge the imperfect control of the Internet that enables piracy but also allows free speech.

There are two paths through this dilemma. The first is to view copyright as an incomplete system of regulation, and then to complete it. Doing so would mean ensuring that computers couldn’t copy or exchange files without verifying permissions and that users couldn’t find infringing material online. Digital surveillance would be a cost of the system, as would damage to legitimate speech and activity when software proved bad at navigating the tangle of rights, limitations, and exceptions that defined our copyright law. It would be a paradise of property rights, or a nightmare of litigation, depending on your perspective.

The second path is to change our copyright laws to ensure that more of what we value doing with digital culture is legal and to expand rights to reuse and remix copyrighted works in non-commercial contexts. We should think carefully, too, about appropriate and proportionate enforcement that minimizes harms to freedom of speech and individual liberty. The recent suicide of Aaron Swartz, who faced charges of 50 years in prison for unauthorized downloading of academic journal articles, brings the problem of excessive punishment into sharp relief.

The price of the first path is our privacy and at least some of our emerging cultural agency — our right to be producers and users as well as consumers. The price of the second path is disruption of the kind we have seen in the music industry and are beginning to see with TV, film, and publishing. Piracy is part of this disruption, but it is a symptom, not the cause. The cause is simply the declining cost of copying, storing, and distributing digital culture. The cause is computers. That is our new “natural condition” (to update Thomas Jefferson) of speech and expression.

Which path will we take? Until last year, the answer seemed clear. For decades, Republicans and Democrats marched together down the first path. IP bill after IP bill passed with near unanimity or voice votes. Back-channel conflicts engaged industry stakeholders but rarely the public.

What a difference a year makes. In the wake of the SOPA fight, we have a real public debate. The Republican party is in the middle of it, and split by it. What happened?

Signs of discord emerged in 2011. Critics of SOPA (and its Senate counterpart, PIPA, the Protect IP Act) on both sides of the aisle worried that the bills would lead to increased surveillance and censorship as Internet intermediaries took steps to avoid liability for infringement by their users. They worried that the bills would create new barriers to entry in the tech sector by allowing content owners, particularly Hollywood, to dictate the terms of innovation. Even so, most also believed the bill would pass easily, like every other IP-enforcement bill of the past 20 years.

Instead, support dropped in the face of tech-sector lobbying and mounting protests. By early 2012, the four remaining Republican presidential candidates had come out against SOPA. Democrats and especially Republicans began to defect in large numbers. By February, SOPA supporters decided not to risk a vote.

And so a powerful political coalition broke apart. Part of the story was the shift in the balance of lobbying power, as Internet companies began to throw their weight into policy debates. And part of it was the emergence of an Internet grassroots ready to mobilize against perceived threats. The two developments were linked on many levels: The youth-driven adoption of the Internet has been accompanied by the commercialization of many of its platforms. In many respects, the SOPA fight was the first test of this generational politics.

Tensions over the issue are therefore likely to increase. In October, the Republican Study Committee (RSC) released a policy brief, by 24-year-old Derek Khanna, that described copyright as a violation of “nearly every tenet of laissez faire capitalism” and advocated a major rethink of fair use, penalties, and the duration of copyright protection. For copyright reformers, this was a messy but refreshing statement. To the copyright industry, it was heresy. By all accounts, the industry lobbyists made themselves heard. The document lasted less than a day on the RSC site before being removed. An RSC spokesman told The Hill that “it did not account for the full range of perspectives among our members.”

The RSC’s sensitivity focused attention on the underlying opportunity: Could the Republican party take up the mantle of copyright reform? The opportunity exists because the breakdown of unanimity on IP policy has not yet been channeled into distinct alternative visions presented by the two parties. This absence of a partisan politics of the Internet is often seen as an advantage for those in the netroots, but it also means that the major parties don’t take the issues seriously enough to publicly dispute them — yet.

At the American Assembly, a public-affairs forum at Columbia University, we surveyed (with support from a Google research award) 2,300 U.S. adults on these issues in August 2011, before the peak of the SOPA battle. We found that most Americans generally recognize the dilemma of IP rights: Most support copyright enforcement in general but not when it begins to compromise free speech (through censorship or overblocking) or privacy (through monitoring of Internet activity). Two questions got to the heart of the issue:

“Would you support blocking if some legal content were also blocked?” No: 57 percent. Yes: 35 percent.

“Should your Internet use be monitored in order to prevent copyright infringement?” No: 69 percent. Yes, or sometimes: 26 percent.

These should be cautionary numbers in the enforcement debate.

We also asked whether people should face penalties for downloading “an unauthorized copy of a song or movie.” Fifty-one percent support penalties, and 7 percent say it depends on the circumstances. That is not strong support for penalties, much less for the increased criminalization of infringement over the past 15 years. But it’s more than we’ll have in a few years. Among 18- to 29-year-olds, only 37 percent support penalties for unauthorized downloading; 53 percent are opposed. Seventy-six percent view the sharing of music files among friends as “reasonable,” compared with 50 percent for other age groups.

Partisan differences were minor, with Republicans showing slightly more enthusiasm for enforcement than did Democrats, and slightly more concern for privacy.

By all appearances, we are headed toward strong majority support for most of the elements of an IP-reform agenda, including wider user rights and a de-escalation of the enforcement wars. Which political party will represent this new majority?

Let’s rephrase the question: How would an Internet politics emerge in the Democratic party? The answer is probably simple: It is impossible in the short term because of the power of Hollywood and inevitable in the long term because of the power of time. Most of the young are already Democrats.

How would an Internet politics emerge in the Republican party? Given the decades of rhetorical entrenchment around property rights and law enforcement, it would probably require the recasting of intellectual-property rights as government monopoly, of SOPA-style bills as crony capitalism, and of Internet enforcement as part of a digital-surveillance state.

Such views in favor of recasting IP rights already have a home on the right, and are supported by congressmen such as Darrell Issa and Jason Chaffetz. Tactical considerations alone could produce Republican-led majorities on these issues, galvanized by the prospect of wounding the Democrats’ Hollywood money base or splitting Silicon Valley libertarians.

From such tactics we might get better laws or at least fewer bad ones, but we probably wouldn’t get a stronger Republican party — or a bigger one. For that, the transformation needs to be broader. The Republican party has an opportunity to take ownership of these issues by embracing the better impulses of the libertarian Right: opposition to monopolies and cronyism, and support for innovation and privacy protections. A majority of Americans endorse these principles already. A strong majority of young ones do. To be sure, it is a soft majority that has not yet consolidated its positions or allegiances. That’s what political leadership is for.

– Mr. Karaganis is the vice president of the American Assembly.

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