March 9, 2012  ·  Lessig

<BEGIN Research Request>

Is there any useful precedent for a “No lobbying pledge”? There are a number of people who have been fishing around for the most effective way to do this, and some candidates for Congress who have begun to articulate the idea (e.g., Bill Shein running in the 1st District of MA), but have others before done this or tried to do this or tried to do it in an enforceable way?

</END>

March 8, 2012  ·  Lessig

Rick Hasen responded to my response to his question. I return the favor here. 

Once again, and nicely summarized by him, I don’t like the non-transparency of AE. I have criticized it and I agree it should be criticized. But my point is about the kind of harm we should expect the non-transparency to produce. Or not produce, as I believe.

Rick has usefully identified some harms that I didn’t describe. I’ll discuss those below, but none strike me as fatal. He has also identified harms that I don’t believe are harms. But to see why, we have to be clear about what we’re describing here. 

AE is a platform. It will give one candidate a chance to get on 50 ballots, and challenge the Democratic and Republican nominee.

What will that candidate owe AE? Gratitude, no doubt. But is there anything in that gratitude that should lead anyone to worry that the candidate will bend one way or the other because of these secret funders

How could it? If the candidates don’t even know who the funders are (and I can attest with certainty that Roemer (who also is critical of the nontransparency) doesn’t), how is the position of the funder supposed to affect the candidate and his or her positions? 

Well, Rick suggests, maybe its through the selection mechanism. Maybe they’ll rig the ballot, or muck about with the votes. 

But that is a separate point from the question about the transparency of the funders. I completely agree that there has to be absolute confidence about the process for the AE candidate to have any credibility. If anyone could even wonder whether the ballot has been rigged (because of course, in real world elections, we never have to worry about such things), that’s a very good reason to be skeptical of whoever the candidate is.

So of course, the integrity of the voting process is a critically important issue, and I remain open to being convinced that AE hasn’t done enough to earn the public’s confidence about that.

But distinct from that question, I am still left wondering: how could the secret funders corrupt anything? Or more precisely, how could the secrecy of the funders corrupt anything? 

I reject Rick’s suggestion that this is anything like transparency in a ballot measure. Of course, knowing who funded which side of a ballot measure is a good indicator of what the ballot measure means. And I don’t doubt the big funders of AE have a desire about how their experiment will change the nature of American democracy (though I believe that is less about a particular substantive agenda and more about a frustration with these two parties). But assuming again no one can muck about with the count, what they’re funding is a platform on which Ron Paul or Ralph Nader or Buddy Roemer or Jimmy Wales all get to compete. And the question, still, in my view, not answered, is how   secret donors are going to steer this wide platform of potential competitors one way or the other (again, especially if they’re secret!).

Rick’s right to say that there are lots of ways the levers might be manipulated. (And he should know: He’s got a fantastic book coming out called The Voting Wars, which recounts lots of examples of levers being manipulated, though none involving AE).  But, again, that could happen whether or not the funders were known. And if that does happen (or if there is not enough reason to be confident that it hasn’t happened), that’s the reason to be skeptical or critical or nonsupportive of the AE candidate. Not because of a mysterious bias that comes from people the candidate doesn’t even know. 

March 8, 2012  ·  Lessig

The great Rick Hasen tweets: 

Hey @Lessig, do you still support #AmericansElect given their transparency problem? t.co/cK2bt78E t.co/INgztOmh

I’ve spun through stages in my thinking about Americans Elect. As I describe in One Way Forward, at first I was not a supporter, because I didn’t (and don’t) believe that the problem with American politics is that we don’t have one more flavor to select on the spectrum between the Republican candidate for President and the Democratic candidate for President.

I’ve come around to support Americans Elect now, but only because I believe it could be a platform for a real reform candidate. If it doesn’t produce such a candidate, I won’t support supporting the candidate it produces.

But in this spin, I have never been too worked up about “their transparency problem.”

Here’s why:

First (and obviously) it would be much better if the donors to AE were known. The presumption for transparency is a strong one. I am a critic of AE to the extent it allows anonymous donations to support it. 

But second (and this should be obvious too), the concern about anonymity here is different than the ordinary concern about anonymity in elections. 

When we hear that an anonymous contributor has given $10 million to a superPac supporting a particular candidate, we are and should be concerned about that contribution. But that’s because of two distinct, and independent reasons: 

  1. We assume that even though we don’t know who the contributor is, the candidate will, AND
  2. We assume that the contributor’s contribution will lead the candidate to be responsive in ways that we won’t understand. 

If those two conditions are not met, however, our concern about anonymity should be different, and, in my view, much less significant.

For example, think about condition (1): Bruce Ackerman and Ian Ayres have shown us that if we could be absolutely confident that the candidate couldn’t know who the contributors were, there’d be little reason to worry about anonymous contributions. What could the contributor be getting if the candidate couldn’t know who the contributor was? (There’d be a much bigger reason to worry about whether anyone would contribute anything at all, as an experiment in Florida with anonymous contributions to support judicial elections showed: no one contributed).

The same is true about condition (2): If there is no plausible way in which the contributions would affect the work or the positions of the candidate, the cost of anonymity is different. 

This second point is why I don’t think #AmericansElect has a “transparency problem.” I can’t begin to imagine how the identity of the contributors could possibly matter to the positions that any candidate would take on any of the issues. AE is building a platform to select candidates. They are promising a process to get access to the ballot in all fifty states. Whether a candidate is selected to be on that ballot depends upon his or her winning in the primary/caucus process. A candidate’s alignment with or against the substantive issues of one of the anonymous contributors isn’t going to affect that candidate’s ability to get nominated by AE at all.

So then what is the threat? The candidate hasn’t been obliged to do anything because of the anonymous contribution that helped build the platform. The only substantive commitment the AE candidate must make is to have a running mate from a different party. How then is the secret money having any secret effect? 

I’m very keen to focus on the subtle ways in which money affects results. That’s the whole point of Republic, Lost. But I can’t see how this money would affect any substantive result. All this secret money does is give people a chance to get on a national ballot. And which person is on that ballot is unrelated to who gave what money. 

So again, while I would prefer it if the donors were all known (because, for example, it would make this sort of distraction unnecessary), I don’t see what harm it causes or could cause.

And I’d be eager for Hasen or someone else to point to it. In what way might the anonymous donations distort anything in the substantive positions of the AE candidate? Because I completely get (even if the Court does not) how “independent expenditures” by superPACs could and do distort the substantive positions of the GOP and Democratic candidates. 

Finally, I do see the benefit in permitting this kind of anonymity. As AE becomes more and more relevant, there will be an increasing clamor from both parties to delegitimize it. Partisans get very angry when you question the two party system. I’m sure there are many who loaned AE the money it needed to get going (and technically, these are loans) who thought it wouldn’t be worth it if their loan were to also earn them the anger it will certainly produce. Some were brave enough to withstand the anger — e.g., Peter Ackerman, the founder; Governor Christy Todd Whitman (R-NJ), a board member. But we should not expect that everyone who wants change also wants to suffer the personal attack this particular form of change will earn them. 

Bottom line: No doubt it would be better if it all were transparent. But what’s the theory about how this kind of anonymity will distort any AE candidate in any particular direction? 

March 5, 2012  ·  Lessig

I was very happy to see a review in the New York Review of Books of Republic, Lost. (My first in that publication, ever!). Ezra Klein of the Washington Post does a nice job in surfacing a critical part of the argument in the book — what I call the gift economy of lobbying, as opposed to the transaction or cash economy that people often imagine such corruption would be. My book, as he puts it, “is the story of how lobbying has managed to undermine a nation.” A nice pull quote from a beautifully written essay. 

But there is also something surprisingly incomplete and frustratingly incorrect about the review that I wanted to flag here — if only because people have grabbed onto both to declare “see, money isn’t the problem in DC.” Technically, Ezra isn’t saying that, and if he were, he’d have no basis to say it. 

First, the “frustratingly incorrect” bit: 

Late in the review, Ezra writes: 

Lessig’s strongest argument in favor of this claim is that money poisons the citizenry’s trust in government, and thus its interest in participating in government: 

“When democracy seems a charade, we lose faith in its process. That doesn’t matter to some of us—we will vote and participate regardless. But to more rational souls, the charade is a signal: spend your time elsewhere, because this game is not for real. Participation thus declines, especially among the sensible middle. Policy gets driven by the extremists at both ends.”

There are two separate points being made here. One is that the rise of money is behind the decline in trust in government. The other is that money empowers ideologues and alienates the middle. Neither claim stands up to scrutiny.

Notice the sentence that is bolded. Nothing in my book is trying to make the (hopelessly complicated) empirical claim that historically, the presence or absence money explains the variance in trust in government, or that the rise in money explains the decline in trust. “Trust” has a million components. It would take a superstar econometrician to untangle those elements. Nothing in what I’ve written tries to undertake that impossibly difficult historical inquiry. 

To see why, imagine the following. Imagine in the 1960s, Americans were trusting of Congress. That trust notwithstanding, imagine that quid-pro-quo [qpq] corruption was nonetheless high, if unnoticed. Then, in the 1970s, Watergate-like events convince America that qpq corruption is indeed rampant. Trust drops dramatically, even if “gift economy corruption” [GEC] is low. Then imagine that in the 1980s, QPQ corruption gets driven out of the system, while GEC begins to rise, taking off in the 1990s. Everyone begins to believe Congress for sale, not in the QPQ sense, but in the GEC sense. Trust thus remains low, even though money in the GEC sense is only just taking off.

If these were the facts, then my claim about the corrupting influence of money would be true, even though aggregate trust would be uncorrelated to the rise of money. Which is to say, again, that you can’t look at the aggregate “trust” number to measure whether the presence of money makes people less trusting. I said nothing about the former; my claim is about the latter; and the aggregate levels of trust across time tell you nothing about the dynamic that I am describing at any particular time. (You can read the most extensive section in the book about this question of trust in government (as opposed to the dynamics of trust generally) here.)

Which leads to the “surprisingly incomplete” bit: 

A central part to my argument is that the current system for funding campaigns may actually exacerbate polarization. I don’t assert that it does — to the great frustration of my editors and activist friends, I am obsessively careful throughout this section of the book to insist I am just pointing to correlations, and don’t have the data to demonstrate causation. (“In this odd and certainly unintended way, then, the demand for cash could also be changing the substance of American politics. Could be, because all I’ve described is correlation, not causation.” p98) But I do suggest that the pattern of positions taken by both parties is consistent with the desire to raise campaign cash. 

This pattern, however, is interestingly mixed, or complicated. For some issues, it requires both parties to take more similar positions. On other issues, it requires the parties take more divergent positions. As I say, 

[T]he correlation should concern us: On some issues, the parties become more united—those issues that appeal to corporate America. On other issues, the parties become more divided—the more campaign funds an issue inspires, the more extremely it gets framed. In both cases, the change correlates with a strategy designed to maximize campaign cash, while weakening the connection between what Congress does (or at least campaigns on) and the potential needs of ordinary Americans. (p98)

How this works is not obvious or straight forward. It might not even be right. But what’s frustrating in Ezra’s review is that he doesn’t even seem to recognize that I made the argument. Again, he takes the summary from page 8 of the book, and claims it doesn’t “stand up to scrutiny” without even examining the actual argument that page 8 was intended to summarize. As he writes: 

Nor is it clear that more money leads to more power for “the extremists at both ends.” For one thing, the timing doesn’t work. Polarization begins to accelerate in the 1980s, not the 1990s. For another, it simply seems unlikely. If you’re talking about lobbying, or fund-raising, the money is with the corporations. But the biggest employers of lobbyists — the Chamber of Commerce, GE, the American Medical Association, the National Association of Realtors — aren’t interested in endless partisan warfare.

Put aside the timing point (which is correct but not relevant): the frustration is that I describe precisely how this very fact is consistent with fundraising driving polarization. Ezra either ignores it or misses it, when what I was keen to understand is whether it was right.

Or put differently: Everything Ezra says in the paragraph just quoted, and in the paragraph after that —

Conversely, small donors, particularly on the congressional level, tend to be more ideological types. There’s good evidence that legislators who make extreme statements have an easier time fund-raising than those who don’t. When House Republican Joe Wilson shouted “You lie!” during President Obama’s health care address, he raised $2 million in under a week. The thing about the “sensible middle” is that they, quite sensibly, don’t spend all that much of their time following congressional races, or even politics. So politicians looking for small donors need to find the engaged, invested voters who are actually interested in primary campaigns, and those voters are usually so engaged and invested because they have chosen a side, and done so strongly.

— I also say. But my book puts these two bits together to suggest how the drive for cash might have a role in explaining each. Ezra hasn’t through “scrutiny” shown how that claim “doesn’t stand up.” He has simply ignored the claim.

Those mistake on their own wouldn’t bother me much. It’s a long book. There’s lots to miss. The bigger problem is the ultimate conclusion that the review (and its title) suggests — that money isn’t the problem we should be worrying about. (“Which suggests that as big a problem as money is in politics—and make no mistake, it is a big problem, as the rise of the Super PACs shows all too clearly—it is not the only one, and it is probably not even the worst one.”)

He gets to make this suggestion because of a very clever point that he notes that I hadn’t seen myself. The review links my book and Jack Abramoff’s, Capitol Punishment. Obviously, I wrote my book before I read Abramoff’s, and I was very happy to see the way that our two accounts of the problem are similar.

But Ezra noticed the interesting point that all of the lobbying that Abramoff describes is for petty stuff (in the grand scheme of things) and yet the argument I’m making is about the big things (the Republic, for example). And so Ezra writes: 

[Lessig and Abramoff’s theories] do more to illuminate the workings of small issues in American politics than big ones. In that, they’re like quantum mechanics. Abramoff’s methods are fine for winning favors for small clients, and Lessig’s model goes a long ways toward explaining why politicians might listen when Hollywood signs up some high-powered lobbyists to tighten copyright protections, but neither is much of a help when it comes to the major clashes in American politics. You need a theory of general relativity to explain the big stuff. And that theory is partisan polarization.

In fact, this is not like “quantum theory,” because these effects do have an effect at both large and small scales. Quantum effects don’t. (See Lisa Randall’s wonderful new book).

It is true, as Ezra argues, that money is not going to change the roll-call vote of anyone on any issue of any import. It doesn’t, as Ezra writes, “decide which votes ended up in the ‘nay’ column and which ended up in the ‘aye’ column.”

But it is a big mistake to infer from this that money isn’t playing a crucial role on these issues. Its role, we both agree, is to change the substance of the bill upon which there is a final vote, and sometimes, crucially. 

I made this point repeatedly in the book, most directly when discussing the health care bill. I quoted former Senator Larry Pressler (R-SD) who was describing for me just how money has its effect. The first example he offered was about “single payer health plans.” As Pressler said:

There should have been an up or down vote on [single-payer health insurance], or a vote at least on cloture. There was neither. For some reason, it just went away. Barack Obama abandoned it completely, although he had said he was for it. Some Republicans are for it—I was for it way back and Nixon was for it … on a much more significant basis. Bob Packwood had a plan for it. But the point is, when they really started doing the health care bill, everybody disappeared who was for a single payer system. I would suspect that is because of the insurance companies’ contributions, especially to the Democrats. p151

You don’t get much bigger than this. Pressler’s point is that here is where the money is having its effect — in the crafting of the options that will eventually get voted upon. Ezra recognizes this — he says in his review, “That’s not to say that lobbyists and interest groups don’t have a hand in the construction of these laws—before they came to a vote. … But in the end, it didn’t decide which votes ended up in the ‘nay” column and which ended up in the ‘aye’ column.”

And then he draws from that (contradictory) acknowledgement this conclusion: 

Which is to say that while moneyed interests are decisive in passing laws and influencing provisions that few Americans care about, they’re much weaker on the issues where Americans are watching.

So money can remove an issue from a public vote, even if it couldn’t win with the issue if there were a public vote. I don’t get why that means money is weaker. Maybe it means money is smarter — fight where the battle is least costly, and the other side can afford to give you the most. 

In the end, what separates Ezra and me is our own sense about which problem is fundamental. Ezra is focused on polarization. I’m focused on the money. I think the money is a more fundamental problem, in part because I think it helps explain at least part of the polarization. In that sense, it is a “root.”

Not because, as Ezra says I say, money “is the problem in American politics.” (emphasis is Ezra’s).

Not because money is “the single cause of everything that ails us.”

Not because fixing this problem is “the one reform that would make democracy hum.”

But instead because fixing this problem “would be generative.” 

Fixing this problem is the one “intervention that would give us the chance to repair the rest.” That is the sense in which money is a root: Fix it, and you can fix the others. Without fixing it, you won’t fix the others.

I am surprised this sense of “the root” is so hard to grasp. Never have I said that fixing the money gets us utopia (as if anyone should want utopia), or that the only problem our democracy has is the money. (Thus making the editor’s choice of titles especially weird: “Our Corrupt Politics: It’s Not All Money.” Who said it was?) What I have argued is that money is the problem we must address first, if we’re to succeed in any other reform.

And if that were the sense that was understood, then Ezra’s last sentence in his review would be perfectly correct — that as big as the problem of money is, “it is not the only one, and it is probably not even the worst one.”

True, not the only one, and not the worst one, but still, the root, just as addiction is the root with an alcoholic. As I write at the end of the book: 

Think about the alcoholic and his plight. He might be losing his family, his job, and his liver. Each of these is a critically important problem, indeed, among the most important problems a person could face. But we all recognize that to solve any of these “most important” problems, he must solve his alcoholism first. It’s not that alcoholism is the most important problem. It’s not. It is just the first problem.

So, too, with us. There is no end to the list of problems we as a nation face. Whether big government or bad health care; complicated taxes or global warming; a ballooning deficit or decaying schools. But we won’t solve these problems until we solve our first problem first: a dependency that has corrupted the core of our democracy. 

These other problems are certain much “worse problems.” We just won’t get to them until we fix this first problem first. 

March 1, 2012  ·  Lessig

The standard line of the political pundits is that Americans don’t care about the corruption of their government. That the issue doesn’t, as I was lectured by panelists on a Dan Rather show, “move any votes.”

I don’t buy it. Rasmussen consistently ranks “corruption” among the handful of “very important issues.” And if there is one thing the Tea Party and Occupy Wall Street should agree upon, it is this issue.

But it is true that we’ve not done enough to make visible the support for an Anti-Corruption Movement. And given the candidates we’re likely to see in the 2012 presidential race, I’m not betting that they’re going to help us any time soon.

So today we’re launching a project to make the corruption issue more visible. We’re joining an international anti-corruption movement (though of course the corruption we suffer is quite different from most across the world), by enabling citizens to commit to the fight against the corrupting influence of money here.

At TheAntiCorruptionPledge.org (or AntiCorruptionPledge.org or CorruptionPledge.org), we ask citizens to take a pledge to do whatever they can to end the corrupting influence of money in our government. You can simply make that pledge, or add to it the specifics you support. We then ask you to help us recruit candidates and incumbents to take the same pledge. When they do it, they can specify precisely which reforms they would support. Finally, we ask everyone to help us with this volunteer project. Built first by some dedicated pro-reform hackers, it has been launched by Rootstrikers. But Rootstrikers will give up control over this site once a community gets going on the wiki that supports it. 

So please, #TakeThePledge. And spread it far. 

March 1, 2012  ·  Lessig

I was on @MorningJoe today with @BuddyRoemer, talking about (surprise, surprise) money in politics.

Mika asked me whether I thought that in 2008, Obama was a Roemer-like reformer.

Of course he was!, I said. But then I said something that — in the binary way that is politics today — was understood by many (as the twitter flame war suggests) to imply that I was just a sour-grapes Clinton supporter, still trying to prove that she would have been the better candidate. 

Wow. 

So, first: I was, from the start, an Obama-fanboy. I was in 2004 (when I wrongly predicted he’d run (for the first time) in 2012). I was in 2007 (when I was urged by friends not to alienate the Clinton campaign by coming out for someone who could not possibly win). When he did win, I was convinced that he was going to be the greatest President of our time. I believed then, and still do now, that he might be the only politician in America who could rally America to the change we need.

But, and second, I believed all that because I thought that Obama believed what he had said (again and again): that unless we changed the corruption of DC, we weren’t going to change anything. As I described last month in Salon

February 16, 2012  ·  Lessig

UPDATE #2: (Wonderfully) Byliner has decided to remove DRM from the book. If you get it after tomorrow, it should be DRM free. 

UPDATE: A print on demand version of the book will be available Monday. Thanks to Byliner for working quickly with Blurb to make this happen.

My book, One Way Forward: The Outsiders Guide to Fixing the Republic, was published Tuesday by Byliner. The book is an ebook. I had expected it would have a print-on-demand alternative. That was a pretty important expectation for me, for reasons anyone who knows me must recognize, but so far, a Print-on-Demand option has not been enabled. 

I’m trying to fix this (long before the work becomes CC licensed (August 15)). Meanwhile, here’s something that some might have missed: 

If you buy the book from Amazon, you can download a free (as in beer, not speech) Kindle Reader. You don’t need a Kindle, in other words, to read it. So you can read it on your computer, your phone, your iPad, your Android, and if as you do, the system remembers (and syncs) how far you’ve gotten. With the Amazon system, you can also highlight sections, and the highlighted section is then sent to the web, so all your notes are in one place. Not quite a physical book, I realize, but something to bring the gap till we find a POD alternative. 

Apologies to everyone this has hassled. Stay tuned for more on the saga of the POD version. 

February 6, 2012  ·  Lessig

I’m a critic of Citizens United. I’m a supporter of an amendment to reverse it (among other things). I’m even (sort of) a supporter of an amendment to declare “corporations are not persons.” But I am not a supporter of any amendment that purports to declare “Money is not speech.”

My former dean, Geof Stone, explains why in this piece in the Huffington Post. Stone’s work as a First Amendment scholar actually set the framework for the Court’s core First Amendment jurisprudence (not the Citizens United bit, but the content neutral/content based, etc. bit). 

I would urge all who care about this issue to think through his piece carefully. My view has been that we need to attack the problem, not with radical changes that would have loads of unintended consequences, but with targeted responses, that would actually address the problem the Court has created. 

So, e.g., with this issue: Imagine a city council passed a resolution that said no one could spend more than $100 on a race for City Council (aka, an incumbency protection resolution). If “money is not speech,” how is that successfully attacked? 

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

Lawrence Lessig

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.