Cary Sherman did his job as chief executive of the Recording Industry Association of America and submitted a column for publication in the NYT opinion pages bemoaning the sudden demise of the House and Senate bills that would have greatly amped up copyright enforcement and facilitated pre-trial injunctions shutting down websites potentially subject to enforcement.
On the substance, the population thus far unburdened by IP law can still stand for some hearty and honest debate, a brief outline for which follows for a few paragraphs. But this blog frequently turns attention to public discourse, civic participation, and the general level of earnest reasoning put into lawmaking. Sherman’s column touches those themes, and I’ll look into that after this brief SOPA intermission.
The most interesting provisions for civic debate are (1) the definitions at sec. 103(a)(1) and the (2) the preliminary injunction provision at sec. 103(c)(5). (I’m using SOPA’s provisions).
Existing copyright law generally uses a litigation scheme of copyright owner against copyright violator. SOPA allowed enforcement against a new group: sites “dedicated to the theft of US property.” That notion seems uncontroversial, so it is the definition of that phrase, at sec. 103(a)(1), that deserves good discussion. Such a site, says the bill, is “primarily designed” to violate copyrights (seems reasonable), or has little purpose other than violating copyright (a little more hazy), or “marketed … for use in, offering goods or services in a manner that engages in, enables, or facilitates” violating copyrights (hmmm?).
That last prong of the definition–marketed for services that might enable copyright violation–is I think the bone of contention for most folks opposing the bill, as a great many social media sites allow people to post originial, derivitive, and copyrighted work without pre-screening. Easily, a lawyer could argue that fits this definition of sites “dedicated to the theft of US property.” It seems to me alot of good debate is to be had, in any event, on (1) whether we want to allow enforcement against copyright infringement facilitators and (2) how to define such actors.
And what to do with them? That is another ripe topic for debate – such as whether courts should be able to allow a website to be shut down prior to the trial that determines whether the site fits whatever definition we settle upon for sites “dedicated” to IP theft.
My sense is that about 99% of the debate could be had over those two sections. The techies can cover the remaining 1% by providing points and counterpoints on the merits of enforcing against domain names rather than an IP address to obtain copyrighted data on a particular server.
But, back to Sherman. It is predictable that the RIAA head would present an argument in favor of more stringent IP enforcement. What I found more interesting was an argument he promised in the first sentence: “how the democratic process functions in the digital age.”
Parsing out the meta-arguments regarding civic participation and social policy from the his arguments attached to SOPA/PIPA, I got this:
Hyperbolic sloganeering hinders sound public policy-making, particularly when injected by corporations with an ability to reach and sway a large audience.
And here are some of what I glean as his preferred norms, with his specific arguments in quotes:
- Civic choices should be based on reason rather than rhetoric (“We need reason, not rhetoric, in discussing how to achieve it.”);
- Companies purporting to provide information without bias should not be allowed to present an opinion (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 ….);
- No one sector in american economy should be allowed to drown out another perspective (“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.”);
and
- It is problematic that people can so easily spread a civic meme without being experts on the underlying issue (Sure, anybody could click on a link or tweet in outrage — but how many knew what they were supporting or opposing?).
I couldn’t agree more with what I’ve interpreted to be the basic normative assumption in Sherman’s argument. (And I’ll be interested if someone has a conflicting interpretation – just remember to strip out SOPA, et al). Indeed, I would be forever grateful if the Sunday morning shows and cable news anchors began their analysis of political talking points with whether they were hyperbolic, reduced to slogans, or injected into the public conscience by unduly influential corporate spending or unfair (let’s call it) pulpit-advantage. Indeed, the civic necessity of education is, in my mind, to cause citizens to enter knowingly and thoughtfully into policy decisions affecting them and their fellow citizens.
Each of the four specific points could be the subject of some interesting debate. I can imagine good arguments all around. Reason seems preferable; but rhetoric, sometimes, can reach through the reasoning of self-interest for certain common goods.
Bullet two is a bit of a mess. Companies like Google can certainly provide neutral search results and still submit a message of its own. (And a quick note on the substantive argument – Google and Wikipedia, insofar as their webpages sent a message, are not the infrastructure providers with the ability to speed up or slow down particular content that advocates of net neutrality wish to keep neutral).
Sectors interested in particular policy tend to be more tuned to bills affecting them than the general public that might eventually be affected by the policy. Lots of good government groups try to rectify that problem, for bills and subsequent agency regulations. My gut cheers Sherman’s call for broader participation; but the fourth bullet point tempers that enthusiasm.
Because we undoubtedly do want some expertise going into policy and regulatory decisions. How to balance the desire for public input and accountability with the real need for technocratic competence?
A glance at the comments section under Sherman’s column offers little hope that folks want to thoughtfully confront these broader themes of “the democratic process functions in the digital age.” Still, I’ll stay tuned.
