The digital tsunami that swept over the Capitol last month, forcing Congress to set aside legislation to combat the online piracy of American music, movies, books and other creative works, raised questions about how the democratic process functions in the digital age.
Policy makers had recognized a constitutional (and economic) imperative to protect American property from theft, to shield consumers from counterfeit products and fraud, and to combat foreign criminals who exploit technology to steal American ingenuity and jobs. They knew that music sales in the United States are less than half of what they were in 1999, when the file-sharing site Napster emerged, and that direct employment in the industry had fallen by more than half since then, to less than 10,000. They studied the problem in all its dimensions, through multiple hearings.
While no legislation is perfect, the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents. But at the 11th hour, a flood of e-mails and phone calls to Congress stopped the legislation in its tracks. Was this the result of democracy, or demagoguery?
Misinformation may be a dirty trick, but it works. Consider, for example, the claim that SOPA and PIPA were “censorship,” a loaded and inflammatory term designed to evoke images of crackdowns on pro-democracy Web sites by China or Iran. Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal? When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is? Wikipedia, Google and others manufactured controversy by unfairly equating SOPA with censorship. They also argued misleadingly that the bills would have required Web sites to “monitor” what their users upload, conveniently ignoring provisions like the “No Duty to Monitor” section.
The hyperbolic mistruths, presented on the home pages of some of the world’s most popular Web sites, amounted to an abuse of trust and a misuse of power. When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading, they are duping their users into accepting as truth what are merely self-serving political declarations.
As it happens, the television networks that actively supported SOPA and PIPA didn’t take advantage of their broadcast credibility to press their case. That’s partly because “old media” draws a line between “news” and “editorial.” Apparently, Wikipedia and Google don’t recognize the ethical boundary between the neutral reporting of information and the presentation of editorial opinion as fact.
The violation of neutrality is a patent hypocrisy: these companies have long argued that Internet service providers (telecommunications and cable companies) had to be regulated under the doctrine of “net neutrality” because of their power as owners of the Internet pipes. But what the Google and Wikipedia blackout showed is that it’s the platforms that exercise the real power. Get enough of them to espouse Silicon Valley’s perspective, and tens of millions of Americans will get a one-sided view of whatever the issue may be, drowning out the other side.
The conventional wisdom is that the defeat of these bills shows the power of the digital commons. Sure, anybody could click on a link or tweet in outrage — but how many knew what they were supporting or opposing? Would they have cast their clicks if they knew they were supporting foreign criminals selling counterfeit pharmaceuticals to Americans? Was it SOPA they were opposed to, or censorship?
No doubt, some genuinely wanted to protect Americans against theft but were sincerely concerned about how the language in the bill might be interpreted. But others may simply believe that online music, books and movies should be free. And how many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation? Indeed, it’s hackers like the group Anonymous that engage in real censorship when they stifle the speech of those with whom they disagree.
Perhaps this is naïve, but I’d like to believe that the companies that opposed SOPA and PIPA will now feel some responsibility to help come up with constructive alternatives. Virtually every opponent acknowledged that the problem of counterfeiting and piracy is real and damaging. It is no longer acceptable just to say no. The diversionary bill that they drafted, the OPEN Act, would do little to stop the illegal behavior and would not establish a workable framework, standards or remedies.
It has become clear that, at this point, neither SOPA, PIPA nor OPEN is a viable answer. We need to take a step back to seek fresh ideas and new approaches. The “Copyright Alert” program, a voluntary effort by the entertainment industries and leading Internet service providers to notify users whose accounts are being used for wrongful downloading over peer-to-peer networks, shows that respectful fact-based conversations can lead to progress.
We all share the goal of a safe and legal Internet. We need reason, not rhetoric, in discussing how to achieve it.
By Cary H. Sherman, chief executive of the Recording Industry Association of America, which represents music labels.