Clay Shirky

Writing in his blog on the New York Times yesterday, David Pogue, one of the Times’ tech columnists, advises toning down the alarmist rhetoric over SOPA, suggesting that opponents of the bill (and its Senate cousin PIPA) should Put Down the Pitchforks. He takes particular issue with people who have criticized SOPA without actually understanding the text of the bill. Then, after this preamble, Pogue proceeds to offer an explanation of SOPA that makes it clear that he does not understand the text of the bill.

Here’s his description of what’s at stake:

If the entertainment industry’s legal arm gets out of control, [opponents] say, they could deem almost anything to be a piracy site. YouTube could be one, because lots of videos include bits of TV shows and copyrighted music. Facebook could be one, because people often link to copyrighted videos and songs. Google and Bing would be responsible for removing every link to a questionable Web site. Just a gigantic headache.

That’s Pogue’s perspective: Letting Hollywood decide whether any given site with user contributions facilitates piracy would amount to nothing more than “a gigantic headache.” (Me, I’d have gone with “a violation of the First Amendment.”) To come to a conclusion like this, you’d have to believe that traditional media companies are committed to balancing their desire for control with a respect for citizen rights, and indeed, Pogue does seem to believe this (hence the observation that bad things would happen only if the entertainment industry’s legal arm gets out of control.)

If their legal arm gets out of control? This is an industry that demands payment from summer camps if the kids sing Happy Birthday or God Bless America, an industry that issues takedown notices for a 29-second home movie of a toddler dancing to Prince. Traditional American media firms are implacably opposed to any increase in citizens’ ability to create, copy, save, alter, or share media on our own. They fought against cassette audio tapes, and photocopiers. They swore the VCR would destroy Hollywood. They tried to kill Tivo. They tried to kill MiniDisc. They tried to kill player pianos. They do this whenever a technology increases user freedom over media. Every time. Every single time.

And they don’t just want control — they want it at low cost, and high speed. Pogue talks about the bills’ allowing the Government to sue. What he doesn’t mention is that the bills were also written to allow “market based” system allowing media firms to get injunctions against sites they don’t like, or that they were written so that firms who host user conversations would have incentives to censor their own users in advance, rather than waiting for notification from a copyright holder, as happens now.

I know David Pogue, and he’s a smart guy. I don’t think he’s intentionally trying to obscure the way the bill imagines letting media firms escape due process and impose “market-based” censorship. I think he simply cannot imagine that the bills are as bad as they actually are.

This is a general problem — there is a reasonable conversation to be had about sites set up for large, commercial operations that are designed to violate copyright. And because there’s a reasonable conversation to be had, Pogue (and many others) simply imagine that the core of SOPA must therefore be reasonable. Surely Hollywood wouldn’t try to suspend due process, would they? Or create a parallel enforcement system? Or take away citizen recourse if they were unfairly silenced? They wouldn’t imagine the possibility of a longer jail term for streaming a Michael Jackson video than Jackson’s own doctor got for killing actual Michael Jackson? Would they?

Hollywood wants to take the law into their own hands — they had our representatives add a vigilante clause, for God’s sake, to protect overzealous censors from legal challenge by users — and like a Scooby Doo™ episode, they would have gotten away with it too, if it hadn’t been for us meddlesome kids.

Chris Dodd, lobbyist-in-chief for the MPAA, who is watching the thick end of a hundred million bucks of paid-for legislation swirl around the drain, has been reduced to bizarrely indirect defensiveness, touting the First Amendment credentials of the bill’s co-sponsors, as if that meant these bills must therefore be clean as well. Yet the very first substantive section of SOPA, Section 2.a.1., gives the game away, by being a little too touchy about its constitutional implications: “Nothing in this Act shall be construed to impose a prior restraint on free speech.” Got that? This bill is not about prior restraint. Totally not! What would make you even think such a thing!?

And arguments like Pogue’s are dangerous not because they are pro-SOPA — Pogue himself is glad it is in trouble — but because they obscure the core historical fact: The American media industry tries to stifle user freedom. Every time. Every single time.

We should delight in the stand we’ve taken in favor of things like, say, notifications, and trials, and proof before censoring someone, but we should get ready to do it again next year, and the year after that. The risk now is not that SOPA will pass. The risk is that we’ll think we’ve won. We haven’t; they’ll be back. Get ready to have this fight again.

This entry was posted on January 20, 2012 at 3:00 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.