SOPA–Free Speech Vs Profit

So, it looks like yesterday’s internet protests by the likes of Reddit and Wikipedia may be having an effect, as US representatives back away from supporting the controversial SOPA and PIPA bills in the Senate and the House of Representatives. The White House is said to be looking dimly at the legislation. But we shouldn’t get complacent – much as I want to like Barack Obama as a President, he does have something of a history of doing the opposite to what he’s publicly said. Just ask the inhabitants of Guantanamo Bay.

So what’s the problem with these bills? Ostensibly, their supporters claim, their purpose is to stop those dastardly pirates from ‘stealing’ copyrighted material such as music, films or TV shows, thus depriving the poor, starving artists like Bono and Steven Spielberg from their pittance of a living wage.

Obviously I’m being flippant – piracy is an issue, but this isn’t the right way to deal with it. The various techies opposed to the legislation point out that this is a sledgehammer to crack a nut; when you’ve used it, you won’t have any nut left to eat anyway. The bills would provide the US federal government (and its ever-attentive corporate lobbyists) with a legal mandate to force websites to remove apparently copyright-violating material, without any recourse to argument, or face having their sites shut down by law.

This is plainly not a transparent process, much like the UK’s ‘Control Orders’, which have frequently allowed the detention without trial of ‘terror suspects’ without giving them any knowledge of the supposed case against them. But it’s not just the lack of an ability to challenge the rulings which make SOPA and PIPA so disturbing. It’s the fact that it gives the US government legal authority to shut down websites, in direct contravention of the Constitution’s First Amendment guaranteeing freedom of speech.

The United States paints itself as the standard bearer for democracy. And yet these bills allow, in the name of monetary profit, the same kind of internet censorship regularly practised in repressive dictatorships like Syria, Iran and China. The legislation is (presumably intentionally) so loosely worded as to effectively allow the federal government to use it as a pretext to censor virtually anything. And not just in the US – given the internet’s global reach, they’re attempting to extend their legal control beyond their borders and across the entire world. Think that’s an impossible challenge? Tell that to 23 year old Richard O’Dwyer, shortly to be extradited for trial from the UK to the US for hosting a site which linked to illegal downloads, despite not having broken any law in the country of which he is a citizen.

That also highlights the ridiculous nature of the UK/US extradition treaty, but that’s an argument for another time. Suffice to say, the US has similar extradition treaties with numerous other countries. If any person has posted anything the loosely worded legislation prohibits, on any website at any time and in any country, not only could said website be removed from existence, but the person concerned could find themselves locked up. As a friend of mine on Facebook put it, if you upload a Michael Jackson song, you could face up to five years in prison – one year longer than the doctor who killed him.

“Ah, but,” supporters of the bill say, “if you’ve done nothing wrong, you’ve nothing to fear.” But who’s to say what you’ve posted is ‘wrong’? The government of course, with the helpful advice of their corporate lobbyists. You might be surprised how easy it is to infringe the labyrinthine intellectual property laws – just ask Lamar Smith, the Republican Congressman who actually wrote SOPA. His campaign website has been shown to use stock images from a photographic library for which he or his organisation never paid. They’re barely visible, but they’re there. In the unfortunate event that these bills pass into law, he could well find himself one of the first to be prosecuted.

This leads into the popular perception that this is a solution being proposed by befuddled, elderly politicians and media moguls who have no clue about the technical intricacies of how the internet actually works, and are unaware of any potential unintended consequences. I’m not so sure. As Dan Gillmor argued, even if these people are really that dumb, their advisers most surely are not. The people agitating to get this draconian legislation passed must be well aware of its potential for totalitarian suppression of any dissent.

And then there’s the ridiculous binary argument that if you oppose SOPA, you must be in favour of untrammelled piracy. Well, aside from the fact that piracy always has existed and likely always will, this is not the way to go about stopping it. Nothing has ever stopped it, and the kind of totalitarian control this legislation advocates is certainly not going to. All it will do will be to make ordinary people suffer the consequences of lessening profits for companies, to the advantage of a censorship-hungry state.

So who are the people who want this? Well, inevitably it started with the Recording Industry Association of America, and the Motion Picture Association of America were quick to jump aboard a ship that was ‘hunting pirates’. These guys have been ineffectually playing catch-up since 1999, when Napster’s file sharing innovation created a seismic shift in the way entertainment was distributed. Suddenly, it was possible to get your hands on music – and later films and TV shows – without actually paying for it. And when corporations are deprived of profit, they get angry.

Of course, Napster was quickly stamped out. But the idea had taken hold, and multitudes of file sharing websites, in multitudes of countries, sprang up to take its place. A sea change had occurred, and suddenly an industry that had held entertainment in a dollar-squeezing stranglehold for the better part of a century was being rendered impotent. And worse, less profitable.

But is this, in itself, so bad? Record companies, film studios and TV producers would say yes. However, it’s worth looking a bit at the history of profit from entertainment; when you do, what you see is a redressing of the balance that existed prior to the monetisation created by the advent of recording what entertains us.

Before CDs, before vinyl, even before wax cylinders, there was still music. And musicians earned their living by playing music live. Your entertainment was a transient thing; in order to experience it again, you had to pay the musician to play it again. Most, if not all, of the money therefore went directly to the musicians themselves, and they in turn actually had to work to earn it.

But at the tail end of the 19th century, recording devices were invented, and suddenly you could listen to one of those transient performances as many times as you liked, without having to pay the musicians again. Naturally, the musicians weren’t too happy about this, and recording companies came into existence. They provided the technical means by which the music could be reproduced, and they, along with the new figure of the ‘agent’ made sure that musicians were recompensed for the loss of earnings caused by no longer having to repeat their performances so frequently.

Not so bad, surely? But fast forward a hundred years or so, and record companies are making vast sums of money, with an entire industry of many thousands most of whom have nothing to do with actually creating the music. Sure, there are musicians who, as a result of record sales, became phenomenally rich – Elvis, Frank Sinatra, U2 etc. But however much money they got, you can bet the record companies got more. And for the vast majority of musicians, record companies and agents ended up netting far more from their work than they ever would. David Bowie may be an industry titan these days, but in his early years apparently made the disastrous decision to allow his manager to control the rights to his songs; with the result that he was virtually penniless by 1980 despite his records still selling by the bucketload.

Piracy, in the form of file sharing, undoubtedly does deprive artists of revenue. But not half so much revenue as it deprives record companies of. And pragmatically, it’s a shift in the way entertainment makes money that cannot be reversed – no matter how much the RIAA tries to clobber it into submission with insanely draconian laws like SOPA. The music industry is changing, and cannier musicians appreciate this. Recorded music will never go away, but downloading can be, and has been, monetised with reasonable efficiency. The problem of ‘piracy’ will never go away either – remember the ‘Home Taping is Killing Music’ campaign in the 80s? It wasn’t killing music then, and neither is file sharing now.

Instead, the future of music may be back where it began; in live shows, with musicians entertaining their fans in person. But there are other ways to use the new mould to musicians’ advantage. Radiohead famously self-released their last two albums digitally, allowing fans to set their own price for the first one. Canadian singer-songwriter Jane Siberry does the same thing, and goes further; her website allows fans to download (at any cost or none) her entire back catalogue, going back to her first album from 1981.

The record industry, of course, hates this – because they make no money out of it. Only the musicians do. Many musicians – including the aforementioned Bowie – recognise the change that has taken place, and are moving on. Record companies are not – hence the arrival of mad schemes like SOPA, which try desperately to cling on to an outdated business model and, in the process, allow a supposedly democratic country an unprecedented level of global control of free speech. Profiteers and political control freaks – are these really the people we want policing everything we say?

As of now, it’s looking less likely that this legislation will be passed. A grassroots protest of actual democracy on the internet has made plenty of US lawmakers step back and think. But as I said at the outset, the bills are far from dead, and Lamar Smith – that dirty ol’ copyright thief – has pledged to keep on fighting for them. This struggle is far from over as a result of one day of mass protest – and in that spirit, I hope Jimmy Wales won’t mind me reproducing his Wikipedia front page from yesterday. To quote Bertolt Brecht, “Do not rejoice in his defeat, you men. For though the world has stood up and stopped the bastard, the bitch that bore him is in heat again.”