February 1, 2012 · Lessig
I wrote a short reply piece to an essay by the German politician Ansgar Heveling about the SOPA/PIPA war. I hadn’t realized they would translate the piece. Here is the original.
The original version of this referred to Heveling as a “minister.” That was a misunderstanding of mine about the convention for referring to a member of the Parliament. Turns out that misunderstanding was primed by a friend who referred to a member (in his presence) as “minister” in an aspirational, as opposed to descriptive sense. I missed the point (i.e., that he wanted this member to become a minister). Anyway, stupid mistake on my part. Heveling is not a minister. He is a member of the German Parliament, from the CDU party.
And so why am I writing this? I was asked, and though I’ve been pretty good about saying no (to stay focused on the corruption/Rootstrikers issue, I have a special weakness for responding to people who want to frame the digital generation as 1960s communists.
An iMaoist Replies
The first lesson of history is that the way the world was carved-up conceptually when you were an undergraduate is not necessarily they way the world is. Things change. Alliances change. And it sometimes happens — rarely, but sometimes — that there’s actually something new that critical minds, including especially the government, needs to understand.
CDU politician Ansgar Heveling tells us he is a “politician well aware of history.” But I suggest that he has forgotten this first lesson of the historian. For he has interpreted the recent battle in the United States over “SOPA” and “PIPA” as if it were a fight in the Paris streets circa 1968. As he tells it, on one side of that battle is all that’s good — read classical liberal society. On the other is all that’s been proven wrong — read “Maoists.” And it’s only a matter of time till this generation of “digital Maoists” finds itself swept into the dustbin of history, as every other generation of Maoists has been before. Because between those who “care about other people’s property” and those who don’t, history is on the side, or so this story goes, of the care-ers. Always.
But a clue to Mr. Heveling’s cluelessness comes from a simple reference to some of SOPA/PIPA’s strongest opponents. It wasn’t just liberal Democrats, such as Representative Zoe Lofgren (D-CA) and Senator Ron Wyden (D-WA) who opposed the bills. It was also right wing Republicans, such as Representative Darrell Issa (R-CA), House Majority Leader Eric Cantor (R-VA), and Senator Orrin Hatch (R-UT). That’s because the opposition to SOPA/PIPA wasn’t an opposition to copyright. It was an opposition to copyright über alles: The view that the value in protecting copyright (or more precisely, a 19th Century version of copyright) trumps every other important constitutional and economic concern. SOPA and PIPA were an unprecedented power-grab by the copyright industries, giving the executive in the United States unprecedented power (at the bidding of those same industries) to censor allegedly piratical sites. The government could block IP addresses, or remove domains from the Internet domain name service, all while denying those censored any meaningful opportunity to show their innocence. In the name of ridding the Internet of “piracy,” SOPA and PIPA would have thus flipped longstanding presumptions of American (and German) law. And by drawing government censors into the infrastructure of the DNS, the bills would likely have weaken Internet security, and undermine its potential for a wide ranging innovation. In a line, these bills had no sense of a central concept of German law — proportionality. And so in response to their extremism, and for the first time in modern history, a broad-based coalition of liberals and libertarians and (some) conservatives united with the Internet community to tell Congress “Enough!”
It’s about time. For more than a decade, the United States has been leading the world in (yet another) war — “the copyright war,” as many call it, or, as Jack Valenti, the late President of the Motion Picture Association of America used to refer to it, his own “terrorist war,” where apparently the “terrorists” in this war are our children.
This war has been an utter failure. Not because computers have made us Maoists, but because the architecture of the copyright law that is now being forced upon the Internet was crafted for a different age and different technology. A strategy for rewarding artists that regulates “copies” makes as much sense in the digital age as a strategy for controlling greenhouse gases that regulates breathing. The modern law of copyright is a failure, not because copyright is a failure, but because in the current technological environment, the machine that we are using to protect the values of copyright is a failure.
The response to this failure, however, is not to give up on copyright law. It is instead to update copyright law, to make it make sense in a digital age, so as to allow it, without breaking the Internet, to continue to serve its essential purpose: rewarding artists for their creativity, and thereby creating the necessary incentives that at least some authors need to create.
No doubt there were some copyright abolitionists in the movement that stopped SOPA/PIPA. But not many. The overwhelming majority of Internet activists who have now achieved their first real victory support the idea of copyright, at least if properly crafted. They recognize the digital age has not ended the need for artists to secure the independence that copyright can provide. Nor has it magically eliminated the risk and uncertainty that great creativity inspires.
The digital age has, however, changed the way in which the law can effectively achieve copyright’s objectives. And if sensible policymaking around copyright were the policy in America, we would have begun the process of mapping a copyright law appropriate to the digital world a decade ago.
But we didn’t. Instead, for almost 15 years now, Hollywood has forced through Congress bill after bill, all focused on the hopeless task of forcing digital creativity back into the model of the 20th century. With each round of failure, they demand even bigger bombs. The copyright wars have become the Internet’s Vietnam, and American policymakers are still being pushed to wage an ever more effective war against “the enemy.”
We Americans have come to depend upon the saner, more balanced opinion of our allies to get us to see the hopelessness in our hopeless wars. Especially with this war, where the corruption that is our political system makes it almost impossible for congressmen to even notice the craziness in the lobbyists’ proposals — at least until the Internet organizes a protest to wake them up. And indeed, the German Greens have begun to do precisely this, by pushing the alternative of a “cultural flat rate,” as just one way among many that might better accommodate the interests of copyright to the nature of the digital age.
We need more such independence. Not just to assure that the next generation of innovators can innovate as freely as Microsoft and Google did. But also to protect the very idea of copyright.
For most astonishing even to me is just how much public support the critically important public value of copyright has lost over the past decade. And like many say of support for the United States, not so much because of the arguments of its challengers, but because of the response of those challenged. You don’t hold the hearts of a people by suing their children. It is time the supporters of copyright put down their guns, and turned to the hard work of crafting a law of copyright that the public could actually support.