Harold Camping has famously predicted the end of the world three times.

His first prediction — September 6, 1994 — came and went with little fanfare. His second attempt at setting a date for the apocalypse was far more successful. The Internet was abuzz as May 21, 2011 approached. But again, the world did not end.

Undeterred, Camping checked his math and announced a new date. October 21, 2011, would mark the final day of everything we know, for real this time. Wrong once again, the former leader of the California-based Family Radio has apparently retired from his role as apocalyptic soothsayer.

Apocalypse Now?

I mention Camping because a similar phenomenon occurs in the copyright realm. It seems that whenever new legislation is introduced, there are those who are ready to predict that if it passes, it will surely result in the demise of the Internet, or innovation, or some other thing we hold dear.

You can see this in action by taking a look at some of the headlines in response to the US House’s introduction of the Stop Online Piracy Act (SOPA):

This are just a sampling of the dire predictions about the epic catastrophes SOPA would bring if passed — the SOPAcolpyse, if you will.

But, like Camping, copyright’s skeptics have made these predictions before.

Sometimes they are done with striking consistency. Sci-fi author Cory Doctorow says SOPA “might be the worst-ever copyright proposal in US legislative history.” Not one to make use of hyperbole sparingly, Doctorow also declared a 2005 French proposal the “worst copyright law in Europe”; in 2007, it was an EU proposal that would surely be the “worst copyright law in the world!”; little more than seven months later, he stated that a Canadian legislative proposal “promises to be the worst copyright law in the developed world.”

The same goes for copyright activist Lawrence Lessig, a big proponent of the “break the internet” line over the years. Talking in 2003 about his idea for a compulsory license that would cover P2P activity, he said, “We have to buy [music and movie companies] off, so they don’t break the Internet in the interim.” That same year on PBS’s NewsHour with Jim Lehrer, it was DRM: “The response that the music industry has insisted on would be technologies that would essentially break the Internet.” Fast-forward to 2008, and Lessig, speaking at an event hosted by Harvard’s Berkman Center, Google, and the Family Online Safety Institute, again cautions against letting copyright law “break the Internet.”

The Sky is Falling

The doomsday scenarios began on day one. In February 1993, the Clinton administration put together the Information Infrastructure Task Force to study the advancement and development of information technologies, including the burgeoning Internet and infant web. Part of their mandate was examining the intersection of copyright law, digital technologies, and networked communications and exploring what changes were necessary.

The Working Group on Intellectual Property Rights released its report, Intellectual Property and the National Information Infrastructure (the “White Paper”), in September of 1995, sparking the first wave of the “parade of horribles” that would accompany copyright reform from then on out.

Copyright scholar Pamela Samuelson penned an article in Wired magazine that gave a laundry-list of reasons to oppose legislation proposed after the White Paper was released: “your online service provider will be forced to snoop through your files”, it would “transform the emerging information superhighway into a publisher-dominated toll road”, it would “eliminate fair-use rights”, “it can be construed as outlawing many activities widely believed to be lawful.”

Others concurred. “The bill in Congress now, critics say, goes much too far … the Internet’s potential as a source of public education and free expression could be crippled … [it] could instead turn out to be the executioner of the Internet’s real promise.”

The initial legislation evolved to become the Digital Millennium Copyright Act (DMCA), which became law in 1998. Some still weren’t convinced the days of a free Internet weren’t numbered. A writer in the Berkeley Technology Law Journal predicted shortly after the DMCA became law that:

The post-DMCA Internet will feature even more of those damnable “404 – file not found” messages than it currently does. As media companies expand their demand-letter operations from commercial “piracy” to include negative commentary, transformative uses, and what they deem to be a little bit too much sampling or quotation, the ranks of the independent Internet publishers will be radically depopulated.

Ten years later, many of those same critics couldn’t praise the DMCA enough. Wired magazine calls it “the law that saved the web.” “Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul.”

A Decade of Falling Sky

Since the DMCA, most copyright legislation has elicited similar responses.

The No Electronic Theft (NET) Act was passed in 1997, expanding the definition of “financial gain” in criminal copyright infringement and increasing criminal penalties. Among the opponents of the bill was the Association for Computing, which raised concerns that it would restrict dissemination of science, criminalize the transfer of information protected by fair use, and chill free speech in research institutions. Others warned it would greatly expand the scope of criminal infringement; “aggressive prosecutors would abuse their discretion to win convictions” or “bring weak felony cases to get quick misdemeanor plea bargains.”1

None of these concerns materialized. As Eric Goldman concludes after examining the five years following the Act, “the prosecutions to date appear generally consistent with Congress’ objectives for the Act.” None of the convictions could be fairly characterized as “de minimis“, none of the defendants could have raised a legitimate fair use defense, and universities and educators remained untouched by efforts under the Act.2

The Artists’ Rights and Theft Prevention (ART) Act of 2005 added provisions to criminal copyright law that expressly targeted “camming” and distribution of pre-release commercial works. Critics called it draconian, foresaw an uptick in prison sentences, and decried a lack of fair use in the Act. The provisions have instead been used judiciously; prisons have not been filled with cammers and leakers.

2008 brought the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act, a broad bill that amended civil and criminal provisions of the Copyright Act and created the Intellectual Property Enforcement Coordinator position, currently held by Victoria Espinel.

The response? Michael Seman of NetSherpa wrote, “The passing of the PRO-IP act is the latest in a string of actions taken by the U.S. Government that result in further constricting the free exchange of ideas,” one that “means we’re close to losing the flow of culture that the Internet so greatly facilitates.” Mike Masnick said, “All it will actually serve to do is to limit more creative forms of expression and much more innovative business models from being allowed to thrive.” And noted copyright scholar William Patry remarked, “The dangers in the new Zero Tolerance to copyright go far beyond the individuals swept within its net, although that is bad enough: the Zero Tolerance approach threatens respect for law itself.”

Grokster pt. 2

Legislative proposals aren’t the only things that brings out the freedom and innovation pessimists.

The Supreme Court issued its decision in Metro-Goldwyn-Mayer Studios v. Grokster in 2005, holding that “one who distributes a device with the object of promoting its use to infringe copyright” may be liable for the resulting infringing acts by its users. In its amicus brief to the Grokster court, the National Venture Capital Association warned that a rule holding Grokster liable would “have a chilling effect on innovation.”

However, since Grokster:

[V]enture capital in the media and entertainment sectors grew faster than the rest of the VC market in four out of the six years. By comparison, in the five years before the Grokster decision, growth was lower in four of them. From 2000 to 2004, media and entertainment venture capital accounted for about 4.6 percent of total VC dollars invested. From 2006 through 2010, media and entertainment VC dollars grew to 7.1 percent of total VC dollars.3

This year alone, in a down economy, music-based startups have received nearly half a billion dollars in funding. And some of these startups are far more exciting than the mere hoarding of music files that Grokster and other P2P services offered.

Little difference that makes though. In a letter to Congress on the proposed PROTECT IP Act, a group of venture capitalists offer the same warning: the bill would “throttle innovation” and “chill investment.”

It’s the End of the World as We Know It

Despite this history, critics of the Stop Online Piracy Act promise that the bill spells the end of innovation, culture, freedom, and the very Internet itself, for real this time.

It won’t.

In the long term, the public benefits the most when both creators and innovators succeed. And our laws should continue to adapt to make sure that happens.

Footnotes

  1. Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Oregon Law Review 369 (2003). []
  2. Id. 392-96. []
  3. Greg Sandoval, VCs to Congress: Antipiracy will ‘chill’ tech investment, CNet, June 24, 2011. []

8 Comments

  1. The Chicken Littles have certainly gotten rowdy, anxious, and organized since SOPA dropped. I think it’s safe to say that they would be whining about this bill no matter what was actually written in it. I get that they’re against the bill, but I just don’t get all the hyperbolic nonsense: Just tell us what’s wrong with it and what you’d do differently. It’s hard to take someone seriously when they’re predicting the end of the world.

    • As long as any bill goes after piracy, they are going to try and stop it.

      That is one of the most obvious truths you’ll find on the planet these days.

      • As long as any bill goes after piracy, they are going to try and stop it.

        That is one of the most obvious truths you’ll find on the planet these days.

        No doubt. Funny how they all say that they’re pro-IP, but none of them ever supports the enforcement of IP rights.

  2. Thank you for this interesting history, and I note that you’ve written substantive defenses prior to this post of why you believe SOPA won’t break the Internet and is both beneficial and fair. I strongly disagree with that conclusion, but I’m glad you’re not relying simply on the obvious logical fallacy that “SOPA will not harm the Internet because past copyright legislation, despite its capacity to do so and warnings from others about that capacity, has not harmed the Internet.” (And I’m not so sure I agree that past legislation has not harmed the Internet. The DMCA may be “working” and allowing some sites to thrive, but that doesn’t mean there wouldn’t be a better Internet with a better version of it).

    I will post my comments about your substantive defense of SOPA on the appropriate posts.

  3. I have seen the light and I now believe that SOPA will indeed Break The Internet. Explaining why is a job for The Cynical Musician.

  4. Pingback: Why SOPA Will BREAK THE INTERNET! | The Cynical Musician

  5. Ah dear. As a publisher, writer, and editor, my opinion of the DMCA is not printable. If the United States Congress was to kill it right now, they would do a greater favor for the publishers like myself then they realize.

    Wayne

  6. Pingback: The Copyright Alliance Blog » Blog Archive » TGIF: Can’t-Miss Blogs, FotoWeekDC, More Levine

  7. I find it maddening that, for many techies, the prospect of potential future harm to some hypothetical individual is of far greater concern than the actual, real time destruction of livelihoods in the music and film industries over the past 10 or so years.

  8. Similar to write’em, I find the discussion in general on the refusal for IP rights for creators maddening. We need to protect our creators and the argument of the free-culture community puts curators above creators. Why should artists have to defend against the Wild West of intellectual property protection because curators demand open access? Revised outdated legislation will mean artists can have comfort, knowing legal protection will exist for their hard-earned work. In the long term, the public benefits most when both creators and innovators succeed. And laws in the U.S. and Canada should continue to adapt to make sure that happens. The critics of IP rights promise that the bill spells the end of innovation, culture and freedom; well if the creators can’t make a living and lose their livelihoods, what will the squawkers have to curate? More than one million Canadians owe their jobs – directly or indirectly – to creative industries. This is electronic looting plain and simple – we prosecute in the real world for this offense, we should online as well. Film, literature and music entertainment take enormous amounts of time, investment, and effort to make – and in the age of the internet, no time at all to steal. Stealing, plain and simple.

  9. Pingback: DNS, SOPA, Content Blocking and More | Plagiarism Today

  10. Pingback: What’s Up With SOPA? : Marquette University Law School Faculty Blog