What’s bothering John Lilly about the SOPA discussion

Over on his blog, John Lilly provides the best sort of analysis of the SOPA conversation — reasonable and measured. The problem with the “dialogue” so far, he says, is that (1) it has basically consisted of each side calling the other names, (2) which isn’t going to help now, and (3) will set a bad precedent for making new tech policy.

Expanding on that first point, he says that while the bill’s supporters may have kicked things off by accusing the tech community of engaging in, supporting, and profiting from piracy, that community should not respond with further name-calling and accusations of censorship. Instead, the tech sector should acknowledge the real problem with online piracy overseas and work together with the content industry to address it.

I really appreciate calls for civility, especially in a discussion that has gotten as heated as the one around SOPA and PROTECT IP. But as an active participant in that discussion, three things immediately popped out at me that deserve attention.

John wants there to be a “nuanced, technically-informed, respectful discussion/debate/conversation/working relationship” between these two parties, but doesn’t see a way that can happen. He may be right when he says that one missing piece is civility. But another is that both parties need to approach this discussion honestly. Supporters of this bill have, in example after example, demonstrated no remorse in lying outright to support their position.

Opponents of the bill point out when its supporters are lying, and when they seem to be advocating for measures suited for repressive regimes. Maybe these are attacks, but they are also true. While both sides may need to tone down the vitriol, there is no hope of progress until everybody first agrees to give the process enough respect to stick to the truth.

(I’ll acknowledge that, in some cases, the bill’s supporters may simply be misinformed; that lack of information would be a consequence of them not taking the debate seriously. Or that they’re not being dishonest, per se, but intellectually dishonest. It’s hard to know without being in their head, but in any case, the point stands.)

John also rightly points out that we need to be thinking critically about how copyright law can and should work today, and he claims that part of that process needs to be acknowledging the real problem facing rightsholders. I agree, of course, with the first part. But I think the second needs to be examined closer. Rightsholders might only have a “real problem” in a very limited sense of the word.

The ease of copying can absolutely lead to missed profit opportunities. But as Steve Blank points out in the Atlantic, the content industry’s track record of identifying which technologies will ultimately be profitable is abysmal, and they’re also not alone in dealing with “piracy”. Every area of commerce grapples with the fact that bad actors can thwart controls, but only the content industries are willing (and able!) to destroy innovation in other sectors to control it. 1The content industry may even be better off than other industries when it comes to piracy, because the version they face — copyright infringement — isn’t even theft.

Combine that history with the first point — that studios and labels are willing to flat-out lie to support their points — and it becomes hard to take their “problem” seriously. The tech community isn’t denying that Internet users can download Hollywood movies off servers in Sweden, but what does that actually mean for their business? The rightsholders’ plain insincerity, the lack of real data to support their position, and their uncanny knack for attacking each new technology as it emerges conspire against the precariousness of their position.

Finally, and this is a point John acknowledges, these bills were not introduced in a way to foster a conversation. If the content industries were interested in a real conversation, they’d find willing participants. Trying to push through legislation that they wrote in secret with “Hollywood’s favorite Republican“, to a Congress they’ve spent $91 million lobbying this year alone, does not demonstrate a good faith effort on their part.

A discussion about how copyright should be shaped and enforced in the face of changing technology and norms is a good one to have. But the people who recognize the importance of technology continue to be denied the opportunity to have that conversation with the other stakeholders. Instead, we have been put on the defensive against incoming legislative U-boats. Without a doubt, a meaningful dialogue would be better now and for the future; unfortunately, our only option at the moment is to point out the glaring flaws in these proposals and keep fighting them until they sink.

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1. The content industry may even be better off than other industries when it comes to piracy, because the version they face — copyright infringement — isn’t even theft.