With popular sites all over the Internet “going dark” to protest well‐intentioned but ill‐considered antipiracy legislation, the Stop Online Piracy Act and PROTECT-IP Act are shedding supporters faster than Anthony Weiner on a Twitter spree. But as I explain in a Cato podcast today, neither is dead yet: Rep. Lamar Smith has pledged to continue marking up SOPA next month, and PIPA is still set for a cloture vote next week.
In a huge about‐face, given their prior intransigence on this point, both have said they’re prepared to remove, at least temporarily, an onerous and controversial provision to require DNS blocking of accused “rogue sites,” which is an encouraging sign. But if DNS blocking was the worst piracy‐fighting proposal on the table, it’s hardly the only one.
The Justice Department and private copyright owners can still seek to have entire foreign sites branded as infringers, triggering an array of remedies that would still deter technological investment and innovation, and still impose serious burdens on American companies and ordinary Internet users. Contrary to the claims of SOPA and PIPA supporters, copyright holders have often been perfectly able to sue the foreign “rogue sites” they cite as evidence new legislation is needed… the problem is that sometimes, they lose. Instead of all that messy litigation, SOPA and PIPA would establish one‐sided hearing mechanism that mocks true due process. Any site a single friendly judge deems “rogue” would still be starved of advertising and subscription revenue. American search engines and other “information location tools” would still have to filter their content to redact any links to the shunned site. As Wikileaks has learned, repressive regimes have long known, and the Supreme Court acknowledged in Citizens United, economic regulation can silence speech (and run afoul of the First Amendment) as effectively as overt censorship.
That means we’re bound to see many more stories like the one entrepreneur Dmitri Shapiro tells: His innovative company Veoh won repeated copyright lawsuits filed by movie studios, but was still killed off by the cost of litigation. SOPA and PIPA will ensure that future lawsuit targets lack the means to fight back—which almost certainly means they’ll never get off the ground in the first place.
Such fears are hardly “hypothetical,” as Rep. Smith likes to argue, given industry’s ugly history of abusing copyright law to squelch competition and criticism. Remember, at the end of the day, that the market position of major studios and record labels is very much bound up with their control of traditional distribution channels. Artists don’t need to be signed to a major label in order to record a great album—but they’re key to marketing the album and getting it into stores.
Any large platform that gives creators an easy way to reach audiences directly, or gives consumers easier mobile access to their legal content, will inevitably do two things: It will enable some amount of copyright infringement, because that’s what digital communications technologies tend to do, and it will cut out incumbent middlemen by circumventing their distribution channels. Industry complains loudly (and often rather dishonestly) about the first effect; the more serious long term threat to their business models is the second.
We’ve already seen a decade of futile efforts to stop unauthorized circulation of copyrighted materials online by “cracking down” ever harder. More new regulations aren’t likely to do the job—but the collateral damage they inflict will keep rising. As a recent and very thorough study by the Social Science Research Council argues, and Netflix has already shown within the United States, the most effective remedy for piracy is to make content easily available online at an attractive price. Since it’s become a “political fact” that we Must Do Something Right Now to reduce online infringement, why not try that?