The copyright standoff: Technology pits bad rules vs. no rules

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In the end, the media industry has to accept that unless people's desires for cheap and easy access to content are met, piracy will never go away. Call it the realpolitick of media distribution.

The media industry has few disinterested allies. Indeed, there's hardly anyone outside the business, its paid water carriers, and its congressional pals who stands up for its interests.

One outlier is Robert Levine, the author of Free Ride: How Digital Parasites Are Destroying the Culture Business. The problem, he says, is that both sides tend to frame the copyright debate as a moral issue, when it's really a classic "clash of interests."

"I've never in my life wanted to pay for a record," Levine says. "That's my interest as a consumer, but it's not in the public interest." The public interest lies in making sure that creative material gets produced, not in giving everyone free access to it, he says. And that in fact is the reason copyright originally came about in English Common Law, on which American copyright laws were originally based — not to protect the interests of creators, but to protect the public interest by ensuring that knowledge could be disseminated.

Levine is the former executive editor of Billboard, and before that, he worked for Wired; he's got cred on both sides of the tech/media divide. He opposed SOPA (because of its fundamental terribleness as a piece of legislation), but thought that its most strident opponents were just as bad as the copyright industries at framing their side of the issue. Anti-SOPA zealots stirred up public opinion based on misinformation, he says. For instance, an oft-cited claim was that SOPA would "break the Internet." Levine equates such rhetoric with the Republicans' warning about "death panels" during the healthcare debate. On the other hand, in the healthcare debate there was no equivalent of Vint Cerf talking about death panels. Cerf, often called a "father of the Internet," was one of many networking experts who thought SOPA might interfere with the Net's basic operation. The only people talking about "death panels" were crackpots.

Levine points out that piracy is a problem that needs to be addressed reasonably. "We can argue about how much piracy hurts [creators of content], but to say it's not hurting them at all is insane," he says. "To people who say the music business isn't losing money to piracy, I say: 'What are you, fucking nuts?'"

Ohanian describes the bill's failure as an example of "people winning against lobbying dollars." He's partly right. It was actually more like people and lobbying dollars winning against other lobbying dollars. Google and other tech companies worked hard in Washington to get the bill shelved. But the movement against it had been bubbling up online for many months, and it reached its pinnacle with the blackouts.

Still, Ohanian insists that opposition to SOPA was "all bottom-up." The blackout at Reddit, the first site to announce such a plan, "wasn't a top-level decision — it was a top-level response" to the denizens of Reddit, who came up with the idea after months of discussing strategy among themselves.

Just as Ohanian credits people power, supporters of SOPA tend to cite tech-industry lobbying as the cause of the bill's defeat, and backroom politics surely played some role. Silicon Valley is finally coming into its own as a power player in Washington, and the tech industry's lobbyists played their part — just not as big a part as is often claimed. SOPA supporters made much of the news that Google had spent $5 million on lobbying in the first quarter of 2012. That's what really killed SOPA, some of them said.

To buy into that theory, though, is to succumb to the idea that the issue is nothing more than two opposed industries each fighting for their own interests. That's only part of the story. The tech industry in the specific case of SOPA not only happens to be in the right, but it also happens to still be massively outgunned when it comes to lobbying.

Most of Google's lobbying took place before the company's spending upsurge. (Google spent only $1.48 million on lobbying in the same quarter of the previous year.) While some of that money surely went toward defeating the piracy bills, it most likely represented a tiny proportion of the total, since the quarter started just a couple of weeks before the bills were shelved. SOPA/PIPA supporters counter that Google had ramped up its spending throughout 2011, to $3.72 million in the fourth quarter. That's true, but again, it's impossible to know how much of that went to defeating the bills, and Google has other political interests. If it's fair to see Google's total lobbying expenditures as evidence that the company bought Congress away from the piracy bills, then it's also fair to note how much the U.S. Chamber of Commerce spent during the same period on all its various interests. Along with the RIAA and the Motion Picture Association of America, the Chamber was the leading pro-SOPA lobbyist, spending $14.2 million on all lobbying in the fourth quarter. The RIAA spent $1.1 million, and the MPAA $850,000.

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Dan Mitchell
Contact: Dan Mitchell