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We need to talk about piracy (but we must stop SOPA first)

January 17, 2012
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Much to my happiness, the internets are in a frenzy about the “Stop Online Piracy Act” (aka SOPA). Congress is currently in recess, but the House announced a hearing on the potential impact to the Domain Name Service on January 18 and everyone expects the Senate to begin discussing a similar bill “PROTECT IP Act” when they return to DC on January 24. There’s a lot to these bills – and the surrounding furor – and I’m not going to go into it, but I recommend reading the actual bill and Open Congress info, the Wikipedia article, EFF’s blog, and the various links at Stop American Censorship. Tomorrow – January 18th – a bunch of geeks are planning a SOPA Blackout Day to voice their discontent.

I abhor SOPA for the same reasons as other geeks. I’m horrified that Congress has crafted a law that will screw with the architecture of the internet in ways that will undermine free speech. I love Josh Kopstein’s post “Dear Congress, It’s No Longer OK To Not Know How The Internet Works.” And I’m glad that geeks are getting vocal, even if – as Clay Johnson has pointed out – geeks don’t quite get how Congress works. I’m stoked that the White House has asked for a civil conversation around piracy (while also opposing SOPA’s key pieces). And I find it utterly hysterical that Rupert Murdoch has come to geeks’ turf (Twitter) to convey his pro-SOPA opinions, even as Obama steps in to state that he opposes SOPA.

In talking with non-geeks, I can’t help but be fascinated that the debate has somehow been framed in the public eye as “pro-piracy” vs. “anti-piracy.” Needless to say, that’s the frame that Murdoch is advocating, even as geeks are pushing for the “pro-internet” vs. “pro-censorship” frame. What’s especially intriguing to me is that the piracy conversation is getting convoluted even among politicos, revealing the ways in which piracy gets flattened to one concept. Teasing this issue out is especially important when we’re talking about regulations that are meant to help with piracy. There are many different aspects of piracy, but for simplicity sake, I want to focus on two aspects that feed into bills like SOPA and PROTECT IP: piracy as a competitive issue vs. piracy as a cultural issue. This can often be split as software piracy vs. media piracy, but not always.

There are actually reasons to not be in favor of all forms of piracy, even if you’re an unrepentant media pirate. Imagine that you are an appliance manufacturer in the United States. You make things like toasters. You are required to abide by American laws. You must pay your employees at least a minimum wage; you must follow American safety regulations. All of this raises the overhead of your production process. In addition, you must also do things like purchase your software legally. Your designers use some CAD software, which they pay for. Your accountants use accounting software, which they pay for. Sure, you’ve cut some costs by using “free” software but, by and large, you pay a decent amount of money to software companies to use the systems that they built.

You really want to get your toasters into Wal-Mart, but time and time again, you find yourself undercut by competitors in foreign countries where the safety laws are more lax, the minimum wage laws are nonexistent, and where companies aren’t punished for stealing software. Are you grouchy? Of course you are. Needless to say, you see this as an unfair competition issue. There aren’t legal ways of bending the market to create fair competition. You can’t innovate your way out of this dilemma and so you want Congress to step in and make sure that you can compete fairly.

Combating software piracy in the supply chain is a reasonable request and part of what makes bills like PROTECT IP messy is that there’s a kernel of this issue in these bills. Bills like this are also meant to go after counterfeit products. Most folks really want to know what’s in baby formula or what’s in the medicines they purchase. Unfortunately, though, these aspects of piracy quickly gets muddled with cultural facets of piracy, particularly once the media industries have gotten involved.

Since the rise of Napster, the media industry has been in a furor over media piracy. Not only do they get pissed when people rip and distribute media content on the internet, they throw a fit whenever teenagers make their own music videos based on their favorite song. Even though every child in America is asked to engage in remix in schools for educational purposes (“Write a 5-paragraph essay as though you were dropped into Lord of the Flies”), doing so for fun and sharing your output on the internet has been deemed criminal. Media piracy is messy, because access to content is access to social status and power in a networked era. Some people are simply “stealing” but others are actually just trying to participate in culture. It’s complicated. (See: “Access to Knowledge in the Age of Intellectual Property” and “Piracy: The Intellectual Property Wars from Gutenberg to Gates” to go deeper.)

Most in the media industry refuse to talk about media piracy beyond the economic components. But the weird thing about media piracy is that Apple highlighted that the media industry could actually innovate their way around this problem. Sure, it doesn’t force everyone to pay for consuming content, but when was that ever the case? When I was in high school, I went over to friends’ houses and watched their TV and movies without paying for them. Even though the media industry is making buckets of money – and even though people have been shown to be willing to pay for content online when it’s easy – the media industry is more interested in creating burdensome regulations than in developing innovative ways for consumers to get access to content. (Yo HBO! Why the hell can’t I access your content legally online if I don’t subscribe to cable!?!?) I guess I shouldn’t be surprised… It’s cheaper to lawyer up than hire geeks these days.

Of course, it’s not like there aren’t a bazillion laws on the books to curb media piracy. What frustrates the media industry is that they don’t have jurisdiction over foreign countries and foreign web servers. Bills like SOPA aren’t really meant to curb piracy; they’re meant to limit Americans’ access to information flows in foreign countries by censoring what kinds of information can flow across American companies’ servers. Eeek. I can’t help but think back to a point that Larry Lessig makes in “Republic, Lost” where he points out that there are more laws to curb media piracy on the books than there are to curb pollution. Le sigh.

Don’t get me wrong: there are definitely piracy practices out there that I’d like to see regulators help curb. For example, I’m actually quite in favor of making sure that companies can’t engage in unfair competition. I agree with the White House that certain kinds of piracy practices undermine American jobs. But I’m not in favor of using strong arm tactics to go after individuals’ cultural practices. Nor am I interested in seeing “solutions” that focus on turning America into more of a bubble. Shame on media companies for trying to silence and censor information flows in their efforts to strong arm consumers. This isn’t good for consumers and it’s certainly not good for citizens.

As we go deeper into an information age, I think that we need to have serious conversations about what is colloquially termed piracy. We need to distinguish media piracy from software piracy because they’re not the same thing. We need to seriously interrogate fairness and equality, creative production and cultural engagement. And we need to seriously take into consideration why people do what they do. I strongly believe that when people work en masse to route around a system, the system is most likely the thing that needs the fixing, not the people.

These issues are challenging and they require people to untangle a wide variety of different conflicting and interwoven practices. Unfortunately, challenging cultural conversations are really hard to have when the government chooses to fast track faulty legislation on the behalf of one industry and to the detriment of another. SOPA has turned into a gnarly battle between old and new media, but the implications of this battle extend far beyond the corporate actors. My hope is that SOPA goes away immediately. But I also hope that we can begin the harder work of actually interrogating how different aspects of piracy are affecting society, business, and cultural practices.

In the meantime, I ask you to stand with me to oppose SOPA. Learn what’s happening and voice your opinion. Legislative issues like this affect all of us.

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