SOPA and PROTECT IP chill free speech

There’s a lot of outcry over how pending copyright legislation (SOPA (PDF), formerly known as E-PARASITE, in the House, and PROTECT IP (PDF) in the Senate) would “break the Internet”. Hyperbole aside, the bills would enable the Attorney General and rights holders to go after payment processors, domain name registrars, and the like to disable access to “foreign” websites that infringe U.S. intellectual property rights.

My concern is that the bills are overbroad. They take down too much non-infringing speech in order to get at the stuff that does infringe upon copyright. I’m not sure whether the Supreme Court would hold that the bills abridge free speech rights under the First Amendment, but they would have a serious chilling effect upon free speech.

For example, suppose that the Russian equivalent of Google’s Blogger service hosts infringing content — say, at blogger.ru/piratedmovies. Suppose also that this is the only piece of infringing content and that the vast majority of content on blogger.ru is stuff like critiques of Dostoyevsky and recipes for borscht. Under Sec. 102 of SOPA, the Attorney General can obtain a court order to block off all U.S. access to blogger.ru. While the Russian operators of blogger.ru could, in theory, appear in a U.S. court to dispute the Attorney General’s actions, it’s unlikely that the operators of a Russian language website are going to go to that effort for the handful of American users interested in its Borscht recipes. Collectively though, this would block off Americans from a lot of “foreign” Internet account. It would, in effect, create a “Great Firewall of America”.

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Citizens United v. Federal Election Commission

Citizens United v. Federal Election Commission apparently lifted the ban on corporations spending money in support of a candidate. I haven’t read the decision yet, but I have some general thoughts on free speech versus campaign finance reform generally.

On one hand, we don’t limit political speech. It runs contrary to the first amendment. You might say that corporations warrant a special exception, but there’s a lot of “potentially political” speech out there that I think should be protected. The second Star Wars prequel, V for Vendetta, V the TV show, and Avatar all could be construed as not-so-subtle attacks on certain politicians and parties, yet all of these were creative works by corporations worthy of first amendment protection (well, maybe not Attack of the Clones, but the rest are pretty good).

On the other hand, we really don’t want the wealthy being able to buy influence with large contributions. So what do we do?

Traditionally, the way to counter speech you don’t like is to speak up yourself. In the past, it was pretty hard because there was only so much airtime on TV or pages in print media. Today however, it’s really a lot easier. The costs of putting your own 30-second campaign ad on YouTube are trivial. Tools like Digg and Reddit make it easy for people-driven movements to raise awareness or draw attention to your YouTube clip without any of them spending a penny (well, maybe they have to pay for Internet access, but you get the idea).

The reason you can buy influence with money is that speech, the kind that reach large numbers of people, is expensive. As the cost of speech goes down, the influence of wealth does as well.

Yes, today, you’ll probably reach a larger audience with a TV ad than you will with your YouTube clip. That’s likely to change in the next decade or so however. TV (as we know it) will die, and it should die.

So rather than griping about the decision, perhaps activists should spend more time trying to increase broadband access.

Proposal: A Public Domain Fund

Quick idea

Google and various other Silicon Valley entities should create a Public Domain fund. Basic idea is that you submit some creative work (a song, image, etc.) and through the magic of up-down voting, the top X entries win some Y dollars. Only catch is that if you take money from the fund, your work must now be in the public domain.

Rationale

A large number of people and groups depend on there being a robust public domain (or at least things easily redistributable via Creative Commons) — from lip dubs to remixes to fan fiction to mere inspiration, a substantial amount of creative expression takes the form of a derivative work. Whenever I feel the need to Photoshop (or GIMP) something together, I often spend a lot of time on Google Image Search or Flickr looking for source material. I imagine I’m not alone. Much of the derivative work out there gets by on fair use, but there’s definitely a good chunk of it doesn’t (or hovers in some gray area).

Furthermore, obtaining licensing and permissions from the original right holders is a tremendous hassle. There’re legal documents to be signed, dollars to be transferred, and hours to be wasted while you wait for someone to respond to your e-mail. Furthermore, the market value for a lot of these mash-ups is uncertain and probably not worth any licensing fee. More often than not, I’d bet that the creators of derivative works do one of two things: (1) give up on the current project or (2) use the source material without permission.

These derivative work creators would benefit from a large body of public domain works available for use. Now I’m not saying there isn’t already stuff out there. I certainly am usually able to find what I need given enough time, but it’d definitely make things a lot easier if public domain / less restrictive licensing were the norm. A Public Domain Fund would provide an economic incentive for creators to use less restrictive licensing.

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Commons and Wealth

I spent lunch today at a talk by David Bollier focusing on how to govern (or manage // semantics) the digital commons. His premise, more or less, is:

  1. There now exists a digital commons not that different from the commons from way back when. Whereas villagers once benefited from a shared space for, say, sheep grazing, Internet users now benefit from shared code and media (among other things).
  2. Commons have to be maintained and protected (see “tragedy of the commons”). What Bollier was interested in was less the shared space and more the norms and relationships that allowed users of the commons to protect it and not abuse it.
  3. After giving numerous examples of how people did so for the regular commons, how do we do so for the digital commons?

Just goes to show that few things are new — we’re just changing the scale and tweaking the metaphors is all.

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