Today, many important websites are “going dark” to protest the anti-piracy bills working their way through the US Congress. I’m joining in this protest, because I think the bills would “break” the Internet as we know it, as the only medium known to humanity that could enable virtually anyone to access speech published by virtually anyone else without barrier of cost or scarcity. The Stop Online Piracy Act (SOPA) [1] and PROTECT IP Act (PIPA) aim to curtail online piracy of intellectual property, seen by the big content industry players in Hollywood and the music industry as a serious risk to their stability and livelihood. As noble as an attempt to prevent freeloaders from profiting by the work of others may be, the bills have been likened to using a bunker busting nuclear bomb when the tool needed is a scalpel.

SOPA and PIPA are particularly targeted at foreign “rogue websites” not directly covered by US copyright law. However, because the operators of foreign sites are not covered by US law, the remedies provided for in the bills apply to US Internet companies, like ISPs and search engines, who would be tasked with modifying their services to expeditiously “prevent access by its subscribers…to the foreign infringing site that is subject to [non-adversarial court orders].” Particularly, many have noted that the methods available to ISPs to block websites pretty much entail DNS blocking, which is one of the toolss used by China to run the “Great Firewall of China”, and index censorship demanded by the Chinese government for search engines to operate in the country.

On Saturday, the White House issued a statement in response to petitions to veto the bills if they arrived on the president’s desk. The Administration rejected certain provisions of the legislation, including the blocking of sites at the DNS level. The White House affirmed its support, however, for the aim of the law and for creating new legal tools to combat piracy of US intellectual property. One of the most substantial parts of the memo, I think, was a call to action for the public and particularly those who oppose SOPA and PIPA.

The President’s Challenge:

So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right… Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.

I think that fundamentally government-ordered censorship jeopardizes the openness of the internet and that there is no way around that fact. But I want to take the Administration’s challenge seriously. As I wondered what the tech community can do to help SOPA’s supporters stop suffering from piracy, I came across a little parable asking this question on one of the blogs of the OReilly publishing company, one of the publishing companies that “gets” the Internet and how to make money with post-scarcity models. “What more does government want–or deserve–from the tech world?” Nat Torkington [2]:

All I can think is: we gave you the Internet. We gave you the Web. We gave you MP3 and MP4. We gave you e-commerce, micropayments, PayPal, Netflix, iTunes, Amazon, the iPad, the iPhone, the laptop, 3G, wifi–hell, you can even get online while you’re on an AIRPLANE. What the hell more do you want from us?

The best thing we could give to the content industry would be a business model that would allow them to flourish and exploit the opportunities of the Internet. That and the technology needed to fulfill the promise of that model. Except, I look all around my Internet and see people using, and talking about, these business models. And they’re practically giving away the technology that make them possible. I configure free WordPress sites for companies and individuals, and I’ve dabbled in open source shopping cart software. These are the tools you can use to sell content to people, you just have to find them where they are, set the price, and give them a “reason to buy.”

The new models for looking at content that I explored in my thesis (ch.4) are probably far too radical for industry insiders to start with, because I advocate giving up a lot more control than the minimum amount needed to participate in post-scarcity culture. In general, Internet people are just giving business models away, but the content industry is slow to pick them up.  They are slow to pick up practices that would let them exploit the open Internet, because these models represent losing some control over the distribution that they traditionally have enjoyed. (And it’s old news that this industry is slow to accept new technology and quick to sue about it.) But their control is based in scarcity, and how hard and expensive it is to distribute content. It is no longer hard nor expensive. What is hard now is finding the right content to spend your limited money and time on. The real value the content industry can provide now is a matter of curation of the right content to the right fans. And I think there is still a lot of money to be made there.

These are the tools and the technologies to reduce piracy and make it irrelevant. Not new legal tools to wipe websites out of the view of US media consumers.

One of the saddest things I heard in yesterday’s “#SaveTheInternet” briefing put on by the PCCC was from Brad Burnham of Union Square Ventures talking about the reluctance of investors to risk their money on businesses exploring new models of music delivery because of the risk that these businesses would get sued by the big content players they would be dependent on for content deals. Instead of realizing the potential of the Internet to get their product into the hands of fans, they shoot themselves in the foot trying to preserve their scarcity-based business models. The movie studios fight Netflix at every turn to wring more money out of contracts for less content instead of offering up their whole collections to every Netflix-like customer at a reasonable price. Netflix grew up on the first sale doctrine for physical media but is trying to put out a hand and lead Hollywood into a world where people pay for movies instead of thinking about pirating them. Spotify is closer to the answer to music piracy than SOPA, but it took years for the record labels to allow it into the US. And it’s instructive to remember how UMG killed perfectly legal video service Veoh with litigation. Any Internet startup that is based on user generated content is subject to that risk.

We who protest SOPA and PIPA want to help content find its way to happily paying fans. The one thing that we can’t give them is the destruction of the Internet and the end of scarcity of information that it makes possible. That is what we’re fighting to save today.

I am writing a novel myself, but I know I will not need SOPA and PIPA to defend my ability to sell it, because I will sell it eyes-wide-open in a world where scarcity of content does not have to exist. I will try to connect with fans by selling my work in formats amenable to their needs for a reasonable price. I will publish it under models that let purchasers know that their money directly supports the creation of my books. Fans feel good when they help the artists they love. They want to do it right. Every content creator and publisher can help them do the right thing. I think my part in taking up this challenge is to show how my business model can be successful, to bravely publish under a model that embraces the open Internet, and to see where it takes us.

If you have any questions, SOPA supporters, contact me, and we’ll try to figure them out.

1. For the “current” version of the bill text, see this Techdirt story from December 12: Lamar Smith Proposes New Version of SOPA with just a few changes (a ‘Manager’s Amendment’). And it seems we are promised a new manager’s amendment that has yet to be seen that will remove DNS blocking provisions (though it also remains to be seen what Rep. Lamar Smith means by removing them, since his first manager’s amendment had a clause right at the top indicating that the law shall not be construed to make DNS blocking mandatory.. but there really aren’t many other ways the laws remedies could be accomplished by the ISPs responsible for implementing it.
2. I thought Nat Torkington was familiar. I particularly liked a post of his from late last year on libraries.

"I frickin hate gum" by Dave77459 (CC-BY-NC-SA)

When I first heard the kerfuffle about the “Ground Zero Mosque,” I figured it would blow right over. Lower Manhattan is a big place, and there are plenty of establishments within a half dozen stone’s throws from Ground Zero. But American intolerance for Islam always does seem to sneak up on me. The story just keeps grabbing headlines as more and more politicians pipe up about it, including Harry Reid, Nancy Pelosi, and President Obama, who outlined support for freedom of religion in development. The Politico’s Roger Simon even typed up a piece diagnosing Obama’s freedom of religion principle-based reaction as a sign that Obama just doesn’t get it. His assertion that Obama might “pull a Palin” and bow out before the end of the term was tongue-completely-in-cheek, Simon’s main accusation was serious:

The problem for Obama is that he appears to have taken seriously all the “change” stuff he promised during his campaign. And he has been unable to make the transition from candidate to president

What a cynical point! That voters who elected a “hope and change” president who promised to stand on principles won’t actually support him if he does it? It’s worth noting that Democrats could lose ground in 2010 without their 2008 voters actively opposing them; they can lose just by failing to bring in the huge level of less engaged citizens they depended on in their last victory. It doesn’t surprise me to see people making Roger Simon’s calculation though, even though my diagnosis would point in the opposite direction. When you have a candidate who promises to change the game, he can be judged both by how the game is played and by how others would like it to be played. Maybe this makes it twice as hard for Obama. Until he actually changes the game, the old rules still apply, and I agree Obama has not been very effective in changing the game. (Perhaps it’s not surprising that Obama is judged by the standard Capitol Hill rulebook, because as the NYT noted this week, he has framed himself as a president defined by legislative success or failure.)

Democrats are going to have a hard time of it this November, though I can’t speculate on 2012 yet. In 2008, they rode a surge of grassroots desperation for change and won big, even in districts not traditionally Democrat. In 2010 they would need at least as much effort to hang on to what they achieved, and I don’t see the grassroots organizational structure coming together. Sure, many progressives are concerned about what Republican gains would mean, but from the perspective of those waiting for a change in the game, the Democrats have done little to show they’re worth the “change” votes, and that cuts enthusiasm right out from under a public. From Obama’s investment bank-infused economic advisory team to the continuation of defense secretary Robert Gates’s tenure to a health care plan that owed a lot to the Republican alternatives offered in the 90′s to the failure to close Guantanamo and end Don’t Ask Don’t Tell, Obama has articulated few strong principles that illustrate he can bring the change people got enthusiastic about in 2008.

So it’s not surprising to see commentary where Obama is judged by the rules of the game he promised to instate. On the Daily Beast, Peter Beinart calls out the Democrats for lack of balls, asking:

After all, what did Obama promise liberals when he ran against Hillary Clinton? He promised that if he won, Democrats would no longer consult polls to decide what they believed.

The Democrats put themselves in a tough position, to be judged according to two standards at once. There’s no way to be positively judged from both Simon’s and Beinart’s perspective. Elections from 2006-2008 have been about Democrats, from Pelosi to Obama, promising that with a few more legislative seats they could bring real change and then not delivering after getting a few more seats. Democrats have huge majorities in the House and Senate and don’t have a strong legislative program record. It’s true Republican opposition and cohesion have increased with each gain the Democrats made, but at some point voter confidence that another Democratic seat is going to make the difference will falter. 2010 will see the same Democratic promises from the last two election years, but I don’t see it as enough to increase voter enthusiasm yet again this year.

Specifically: “Until the idea of the public option came along, a significant faction within the party rejected anything short of true single-payer, Medicare-for-all reform, viewing anything less as perpetuating the flaws of our current system. The public option, which would force insurance companies to prove their usefulness or fade away, settled some of those qualms.”

Without introducing any real competition to insurers yet enforcing an individual mandate to buy insurance, how can somebody who wants real reform support the Democrats on health care? (My position: I think they were elected to end the wars and provide justice, transparency and real health care reform–which sums to “change the way Washington works”–and they haven’t done it.)

The public option as figured before it was killed was a weak competitor to insurance, crippled in its ability to negotiate lower prices for drugs, etc.

Specifically Krugman says:
“Until the idea of the public option came along, a significant faction within the party rejected anything short of true single-payer, Medicare-for-all reform, viewing anything less as perpetuating the flaws of our current system. The public option, which would force insurance companies to prove their usefulness or fade away, settled some of those qualms.”
Without introducing any real competition to insurers yet enforcing an individual mandate to buy insurance, how can somebody who wants real reform support the Democrats on health care? My position: I think they were elected to end the wars and provide justice, transparency and real health care reform–which sums to “change the way Washington works”–and they haven’t done it yet.

The public option as figured before it was killed was already a weak competitor to insurance, crippled in its ability to negotiate lower prices for drugs, etc. It was pretty much only introduced this spring as a kinda lame alternative to fundamental reform because there “just weren’t the votes” to make a real change to health care. I think the public at least needs an option that is a strong nonprofit to compete with the insurance companies. (The insurance providers 20% overheads for profit and admin. costs are killing us)