Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet

by David Segal, Patrick Ruffini

  Over the next few years there will be a steady stream of these requests. The hotel lobby in New York City has already convinced the city council to outlaw temporary hotels. The bill was presented as a consumer safety measure to prevent slumlords from turning dilapidated tenements into squalid, unsafe hotels. The councilmembers never considered the bills’ impact on Airbnb but the hotel lobby knew exactly what their proposed language meant.

  The Research Works Act played out in a very similar way in Washington. Its original sponsors understood it as the elimination of a government mandate that forced researchers to embrace a specific business model. The academic publishers who sponsored the bill knew very well that it would slow competition from open-access journals.

  I could go on and on.

  Telecom companies asking regulators to impose new burdens on Skype, or toy manufacturers asking regulators to force Etsy sellers who make hand-carved wooden toys to be subjected to a rigorous certification process that only makes sense for large manufacturers.

  The point is that we have to step back and see these policy proposals as the inevitable byproduct of the transformation of our economy. We have to see them as a part of the competition between the bureaucratic hierarchical model for the creation of economic value that has dominated the economy for the last 130 years and the new emergent economics of networks.

  We need to be smart enough to recognize that it is not consumers asking for these regulatory or legal restrictions, it is the incumbents. We need to defend the freedom to innovate because it is critical to the health of our economy. Our economy is today one of the most innovation-friendly economies in the world. Until recently, no one investing in or creating a business on the Internet would have considered building their business anywhere else.

  But the recent enforcement actions against MegaUpload and JotForm have forced entrepreneurs and investors in Internet services that enable users to upload content to the web to rethink where their businesses are based.

  I don’t know the particulars of the JotForm case and it is very hard to defend the behavior of the MegaUpload founders but it is also impossible to ignore the fact that the site takedowns made it impossible for hundreds of thousands or millions of users to get to the completely legitimate content they stored on those services.

  In the weeks that followed those takedowns every one of our portfolio companies had to reconsider where their users’ data is stored. A lot of them are now wondering if they should be moving to domain name servers outside this country.

  The Internet is a global network. There are countries out there that recognize the opportunity to create an Internet Enterprise Zone. They are working to establish a policy framework that protects user data, and more broadly the freedom to innovate. I cannot tell when or even if data and the good systems administration jobs that go with it will move offshore, but I can tell you that the conversation has already started.

  But networks are not just critical to our economy. They are crucial to a vital civil society. It is pretty clear that we will not be able to continue to live in the manner in which we have become accustomed. We are very likely not going to be able to support things we value like the arts or social services in the way that we’d like. We are going to have to learn to do more with less.

  Networks can play a role here as well. Kickstarter, a crowd-funding network, launched only a few years ago, will provide more support for creators this year than the National Endowment for the Arts.

  In the UK, lawmakers are just as frustrated as we are that banks are still not lending to small businesses, but the irregulatory framework has allowed FundingCircle, a peer-to-peer network of lenders and borrowers, to flourish. Lawmakers have begun encouraging their constituents not just to “shop local” and “eat local.” They are asking them to “lend local,” creating a brand new source of working capital for small businesses and an emotional and financial return for lenders.

  There are many other examples of networks making a difference in civil society from mapping slums in Kenya, to getting at-risk kids in New York to take better care of their health, to empowering mothers in Boston to take on gang violence. If we defend the freedom to innovate, we will find lots of ways to efficiently deliver important social benefits.

  Of course, we should expect the same resistance from the incumbent bureaucracies in the public sector who regard those services as their turf.

  Innovation depends on keeping the costs of innovation down, making sure that financing is available, and making sure that markets are accessible. It does not depend on R&D grants or targeted industrial policy.

  So the next time you see a piece of legislation that has an impact on an open Internet, software or business method patents, copyright enforcement, free and fair competition, open government, or cyber security, I urge you to see it through the lens of the competition between incumbent industrial hierarchies and emergent networks.

  Consider who is sponsoring the legislation. Does it really protect consumers or does it protect the business models and cost structures of the incumbents?

  I recently heard a woman from the Occupy movement say the most poignant thing. She said “no one is coming for us.” Her generation does not expect the government to be there when they need it, nor do they think the incumbent industrial hierarchies are structured or motivated to address the challenges they expect to face.

  Remarkably, she was not depressed, defeated, or bitter. She was determined. The kids who grew up inside AOL chat rooms and came of age on Facebook have an intuitive understanding of the power of networks that our generation will never have.

  They are not asking us to fix the problems we left them with. They are asking us not to get in their way as they try to dig themselves out. I think we owe them that.

  SOPA AND THE POPULAR FIRST AMENDMENT

  MARVIN AMMORI

  Marvin Ammori is internationally recognized as a leader in Internet law and public policy, combining first-rate legal analysis with creative political strategies. In 2012, Fast Company named Ammori one of the 100 Most Creative People in Business in 2012 (#32) for his role in helping to defeat the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) bills. He served as the head lawyer of Free Press, as a technology advisor to the 2008 Obama Campaign and Transition, and now represents some of the nation’s largest companies.

  The debate over SOPA and PIPA should be a turning point in the way people think about the First Amendment, which forbids government officials from abridging the freedom of speech and press.

  Traditionally, for perhaps 100 years, people tended to think of the First Amendment as something judges enforce. It is a part of the Constitution and a limit on what Congress, the executive branch agencies, and states and cities could do. In this First Amendment mythology, an official in a “political” branch of government (the mayor, the governor, the President) tries to silence someone (the dissenter, the flag burner, the hate speaker). Then the heroic judge strikes down the law, sets free the prisoner, or refuses to impose a fine.

  It was seen, in short, as a judicial right. As a judicial right, the public had little involvement. Judges are not elected. They do not count votes. They accept amicus briefs, but they also simply adjudicate issues. Unlike Congress, they are somewhat insulated from politics.

  Increasingly, however, the most important decisions determining our freedom to speak to one another here (and around the world) are those that will shape the emerging architecture of the Internet. Judges do not make these decisions. For many decades, scholars told a joke that that freedom of the press belonged to those who owned one. The Internet changed all of that. The Internet is our most important speech medium today—because it enables anyone to reach a wide audience without relying on a newspaper editor or broadcast producer. The Internet has an open architecture for speech and innovation—that promotes greater levels of commerce and communication.

  The Internet has been an effective popular speech medium not primarily because of judicial decisions.
We have not relied on speech heroes wearing black robes but on engineering decisions in technical standard-setting bodies, on decisions made by lawyers at technology companies over whether to take down videos or keep them up, on decisions made at federal agencies, and those made at Congress, including the notice-and-takedown provisions of the Digital Millennium Copyright Act of 1998, which protects websites like YouTube, Facebook, and Twitter from copyright infringement suits based on their users’ posts—so long as these companies follow simple takedown procedures.

  If judges are not the key players, does that mean the First Amendment is irrelevant? No. Judges are bound to uphold the Constitution—but so is Congress. So are members of federal agencies. So are state government officials. So is the President. They all took an oath to uphold the Constitution, and so they should all be guided by the principles in the First Amendment. They have sworn not to restrict freedom of speech. The decisions that govern our basic communications infrastructure—from broadcast TV rules to cable, phone, and Internet rules—are all subject to that requirement.

  Once we determine the obvious—but overlooked—role that Congress and popular branches play in shaping our free speech universe, we still have to ask, what should the First Amendment’s guarantee of “freedom of speech” mean? Should it mean that we protect the largest corporations, the largest cable companies, the largest billionaire campaign funders in federal elections? Or does it mean that we adopt a vision that all Americans should have a voice in advocating their viewpoints, in having an ability to persuade other Americans, and being able to associate and organize with others online and in person. Once we have to debate the meaning of freedom of speech not before a judge, but before popular branches of government, then it’s the American people who give meaning to the words of the Constitution through elections, through debates, and through reaching out to elected officials and making their voices heard.

  In our democracy, the First Amendment should be read to empower the speech of the little person, the Everyman, not just the billionaire and the cable TV executive. It should not be on the side of the copyright holder, the large media company that claims to have broad “property” rights in storylines, characters, songs, and movies. While they have a claim to their original creations, for limited times under the Constitution, they should not be able assert “property” rights that limit the average American’s ability to speak and communicate with other Americans. But I am just one voice among many. With a First Amendment centered not on judicial opinions but on the very future of the Internet, the public’s voice is what matters most.

  The SOPA and PIPA debates were an example of millions of Americans engaging in an important free-speech debate. Lawyers for the copyright industries tried to suggest the debate should turn on technocratic, difficult legal questions reserved for constitutional legal experts who understand the law and 200 years of legal precedents (like me!). But the questions underlying those laws are fit for any citizen. Any American that uses the Internet can have an informed opinion of how the Internet should evolve. SOPA and PIPA were particularly problematic. Those laws would have censored some websites without adequate due process based on the new legal standards of whether they facilitated copyright infringement. The impact of the law would have been to punish companies like Twitter, YouTube, Google, Facebook, Tumblr, WordPress. All these companies enable people to speak and to share. Because people can speak through these sites into the Internet, they can also “facilitate copyright infringement.” Copyright industries wanted all of these companies to be “on the hook” whenever any of their individual users (up to one billion people) shared copyright-infringing material on those platforms.

  It is very expensive and dangerous to be on the hook for the potential infringement of one billion people. It would be dangerous to be a platform for others’ speech. The entire Internet would’ve moved increasingly towards controlled spaces, and spaces for corporate speech. Only someone who could afford a copyright lawyer would be willing to take on the risk of opening up their own platforms for others’ speech. At stake was the “social” Internet.

  The American public rebelled at this thought of crippling social platforms. Rather than writing a brief to a court, they made their voices known to the political branches of the U.S. governments, branches that are also bound by the Constitution and bound by the First Amendment. That massive public outcry resulted in pro-free speech outcome—one that benefited the speech of all Americans whose creativity and passions have made the Internet the world’s greatest medium for free and democratic discourse.

  BLANKET LICENSES: ONE OF MANY POTENTIAL PATHS FORWARD IN COPYRIGHT REFORM

  CORY DOCTOROW

  We are headed inexorably toward a world made of computers and networks—a world strung together by the Internet. And there is no way to communicate on the Internet without making copies. We can’t stop copying on the Internet because the Internet is a copying machine. Literally. With regards to copyright today, copying isn’t a problem. In the twenty-first century, copying is a fact. You can’t and won’t solve copying. If we are going to regulate the Internet and the computer, let us regulate them as the building blocks of the information age, not as glorified cable-TV delivery services.

  If anti-circumvention and intermediary liability don’t work in regulating the Internet and computers, what does? Blanket licenses do. Almost all the uses of copyrighted works in the world can be covered by blanket licenses. For example, if you operate a karaoke bar and someone wants to sing Jimmy Buffet’s “Why Don’t We Get Drunk and Screw?” at 3 a.m. (a good time for that number, I’m told), you don’t have to get Buffet out of bed and dicker over whether the royalty for the performance will be $0.10 or $0.25. No, you buy a blanket license that covers all the copyrighted music performed in your premises, from whats played by cover bands to CDs and MP3s servers play on slow afternoons. Blanket licenses are how radio DJs are able to play music. In many countries, blanket licenses are collected to compensate writers for library lending and for the use of their works in university course packs.

  Here’s how blanket licenses work: 1) We collectively decide that the “moral right” of creators to decide who uses their work and how is less important than the “economic right” to get paid when your works are used. 2) We find entities that would like to distribute or perform copyrighted works, negotiate a fee structure, and put the resulting money into a “collective licensing society.” 3) We use some combination of statistical sampling methods to compile usage statistics for the pool of copyrighted works; the licensing society divides the money proportionately based on the stats and remits it to rights holders.

  This not only is a tried-and-true scheme for paying rights holders for the use of their copyrights but also moves users and intermediaries from the realm of the illegal to the realm of the legal. ISPs around the world are desperate to stave off the legal headaches of policing their users’ music downloading. With blanket licenses, ISPs could advertise that their service comes with “free downloads of all music, ever!” The ISP pays a per-user fee to the collective, and the users and ISP become legit. And just as a radio DJ can legally play music regardless of source, so too could users use any service and any protocol to download any music, knowing that rights holders will get compensated for their activity. “Illicit” download services could start to focus on delivering excellent user experience, artistdiscovery tools, and bandwidth-friendly network designs that minimize the costs borne by ISPs as a result of user downloading.

  The devil, of course, is in the details. How much should each user cost? The sweet spot is the price at which it is cheaper to get legit than it is to skirt the law. How to divide up the money? Collective licensing societies have a poor track record when it comes to fairly distributing the fees they collect. Historically, they have been liable to capture by the major labels, who squeeze out the funds that are rightly owed to smaller competitors and indies. This funny accounting is only compounded when statistical sampling is done using severa
l different methods—surveys, network monitoring, self-reporting—as the way each of these numbers is weighted can substantially alter who gets paid what.

  But this is the twenty-first century. If there is one signal characteristic that defines today’s technology world, it is analytics. Every major tech company and ad brokerage is in the business of analyzing hard-to-measure, disparate data sources. A collecting society run with the smarts of Google and the transparency of GNU/Linux has the potential to see to it that the sums collected are fairly dispersed.

  This is a complex scheme, it’s true. But it has some great advantages when compared to the current record-industry plan, which is based on attacking fundamental human rights in the hopes of realizing the utterly speculative piracy-free Internet that no one (apart from corporate execs and their friends in government) believes to be remotely possible.

  First: It is possible. It’s been done. A lot. It works.

  Second: It pays investors. If you’re running a record company, your shareholders want dividends, not pie-in-the-sky talk about the money that will pour in when “the piracy problem is licked.”

  Third: It pays artists. This is a policy, created by statute. The statute can be designed to protect creators’ income.

  Fourth: It encourages investor competition. A world with four major labels is stupidly anticompetitive. A level playing field, with equal access to distribution for all, makes it easy for new kinds of investment businesses to emerge.

  Fifth: It encourages intermediary innovation. Any company that wants to produce a music service today must first negotiate a deal with the big four, a Herculean task that is often more expensive and difficult than building the service itself. Better music service will result in more listeners and more license fees and pay more to more artists and more investors.