Just Write a Better Bill

Fred Wilson, Brad Feld, Reid Hoffman, Evan Williams and Dennis Crowley are launching a campaign this Wednesday to stop the Protect IP bill recently introduced in the Senate. They’re some of the smartest people thinking about the Internet today. But sometimes I think they’re part of the problem, not the solution.

The bill would make it illegal for Google, Bing or possibly even Facebook and Twitter to host links to websites like PirateBay that have “no significant use beyond copyright infringement.” And the bill would remove these pirate websites from Domain Name System (DNS) servers, so you couldn’t visit the sites directly without knowing their numeric Internet Protocol (IP) address.

The purpose of the bill is to make it more difficult to download music, movies and other intellectual property without paying for it. The opposition has decided this is censorship, and is launching a “Stop Censorship” campaign on “Stop Censorship Day,” which is tomorrow.

To be clear, I don’t like the bill either. The Electronic Frontier Foundation has outlined some of the main issues: it could limit innovation around content-sharing and social sites, which would  have to develop ways to identify stolen content. It doesn’t protect companies that make reasonable efforts to remove stolen content. It needs to ensure a due process for removing a website from DNS servers, which otherwise sets a dangerous precedent.

But this bill, however flawed, isn’t censorship. Censorship is when governments or corporations prevent someone from expressing her own ideas. Theft is when someone takes someone else’s work. Copyright laws exist to prevent theft of someone else’s work. If a thief stole my bicycle, or even copied Redfin’s website wholesale, and then claimed her act as a protected form of self-expression, I would punch him in the nose. With or without this bill, you can say whatever you want on a website as long as you don’t play someone else’s song or movie without permission.

Reid and Fred understand the difference between free expression of your own ideas and theft of someone else’s ideas, and they’re intelligent enough to think about more constructive ways than the current bill to stop musicians, writers and movie-makers from getting ripped off. I wish that was their focus. But protecting artists hasn’t been their primary concern, or really the concern of  anyone involved with creating the Internet.

Every since I downloaded the Anarchists’ Cookbook from an online bulletin board at the age of 11, the Internet has had a culture of theft. The difference is that now our most respected thinkers have given the grown-ups among us permission to steal. Friends of mine who would never take a Star Wars DVD from Target routinely download movies without paying, and they cite people like Mike Arrington for his approval.

Fred Wilson, to his credit, has invested in Kickstarter, which helps artists get funded through old-fashioned patronage. In return for providing a few hundred dollars, you can get early access to a new song or be acknowledged in the first edition of a new book.

This is a wonderful concept, but it isn’t going to give artists access to large-scale commercial markets so that they can thrive on their own. Anyone who has studied medieval patronage knows how twisted and kow-towing the patronage system can be. It gave us great churches, but also the image on the Sistine Chapel of Michelangelo’s soul being hung out to dry.

Michael Arrington has suggested that musicians tour endlessly, selling t-shirts at their shows. Endless touring is what killed the money-desperate Charles Dickens, who never forgave America for refusing to enact copyright laws in the years when most English writers lived in England. It was decided at the time that the printing-press business was more important to America than the novel-writing business. As now, the rationale was jobs rather than justice.

I don’t really care whether the Internet industry is more important to the American economy than the movie or music business. I care about what’s fair. As capitalists, our goal should be to create a fair market, which lets artists prosper from selling their work; this is what Apple and Amazon are doing. And as creators ourselves, our sympathies should be with the artists. We can support freedom of expression and stop theft but only if we try to solve this problem in a thoughtful, urgent way.

Otherwise, we’re just like the industrialists criticizing indiscriminate government action on pollution when we ourselves have refused to engage, all the while profiting from each year’s delay. Do you think the government has any idea how efficient a coal plant or an automobile can be? Neither does it understand how the Internet works. It’s impossible to make an industrial product without harming the environment, and it’s impossible to make a social or search website without creating the possibility of online theft. But together we can make things better than they are now.

We just have to try. I hope when folks post their protest on Wednesday that we also propose a way to protect intellectual property as well as innovation and genuine self-expression at the same time. Otherwise, it’s hard to blame the government, after years of standing aside, for acting in less informed, thoughtful ways.


  • http://www.foreclosuredeals.com John Evan Miller

    I definitely agree with the following statement: “ It doesn’t protect companies that make reasonable efforts to remove stolen content.” as well as the fact that this is not censorship…at all actually. Although I understand the need/desire to control stolen content, this bill simply will not address that matter effectively. Great post.

  • Ironmike

    I agree.  While being deeply opposed to any attempts to censor content, and in an open and easily accessible internet there is bound to be some measure of thievery, I do think that the artist should have the copyright protection to which the law entitles them.  This increases, rather than decreases, access and availability.

  • http://twitter.com/mykie242 mykie Gunderson

    Bills like this only punish companies that make reasonable attempts to remove content, since hackers and pirates alike spend a good amount of their time circumventing such removals.  Essentially this causes legitimate content providers to do the jobs that law enforcement SHOULD be doing, and punishing them for failing.
    That's just not how it works in the real world; If someone stole your bike, you wouldn't be cited for not having a strong enough lock.
    This bill reeks of special interests, which always wrecks a perfectly fine-spirited bill.  If only there was a way of creating a bill that doesn't get tarnished with riders and other special interest BS…

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  • http://www.elieseidman.com Elie Seidman

    Just came across this today. Great post – strongly agree. WRT to your commentary about the culture of theft, which I strongly agree with, I'm hopeful that we're seeing a change in what is considered normal. More and more, normal people recognize that it is theft to steal bits just as it is theft to steal a physical book from the local barnes and noble.

  • Joe

    One should learn from past efforts when planning for the future. The DMCA has been around for more than a decade now, the explicit safe-harbor protections are what allow sites that depend on user-generated content to thrive.
    It is also clear that it can be abused to censor information, in order to qualify for those same safe-harbor protections a website owner must disable access to the links provided in the notice in a reasonable period and the sender does not need to provide any evidence or proof of copyright ownership. It falls on the recipient to prove bad faith, also known as guilty until proven innocent.
    The DMCA is a good idea but it's weighted in the same vein as “three strikes” laws enacted in some juristictions whereby acting only on “good faith” from the complainant a user accused more than three times is subject to a disconnection order.

    SOPA will only act as an incendiary to this already bad practise situation, it might not be intended as a tool for censorship and merely the commendable goal of protecting intellectual property rights but it will be used as such in the same manner that UMG has used the DMCA and related tools to censor an unfavourable video comissioned by MegaUpload.

    The MPAA and RIAA group of companies and to a lesser extent the global software industry, have a history of frustrating the consumer and making it difficult to lawfully access content in a manner most convenient to them. They cling to the notion of regional pricing, punishing users who don't live in the US who want to pay a fair price for a movie or a song or who don't wish to wait several months for it to come out in a local brick-and-mortar store.
    They have ample opportunities to make services like Netflicks or Pandora available globally, make their software titles available as online purchases without charging punishing users by charging twice the price outside the US. Or simply make the products available outside the US period.

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