The SOPA Wake-Up Call to Abolish Copyright

by Stephan Kinsella
Feb. 01, 2012

I’ve blogged quite a bit lately about SOPA and PIPA and the recent Internet blackouts and other protests against these bills, which threaten free speech and the open Internet (Mike Masnick et al. at Techdirt have also been great on exposing and analyzing SOPA).

As Jeffrey Tucker noted recently, the protests against SOPA started not with conservatives or even “libertarians,” but with civil libertarians of the “left,” as well as Silicon Valley tech types. Of course, some libertarians have been opposed to SOPA (and copyright) from the beginning — the more-radical and anti-state libertarians, in particular Austro-libertarians and left-libertarians.

Aside from the anti-state libertarians, however, most of the protests against SOPA concede that copyright is good, intellectual property is important and piracy is bad…but then they bemoan that SOPA “goes too far.”

For example, consider this article in PC Magazine, providing the response of 11 PC Mag staffers asked for their take on SOPA. The response to SOPA was universally negative, but most of them first prefaced their opposition to SOPA by genuflecting to copyright and recognizing that IP piracy “is, of course, a real problem.” For example:

“Yes, theft of intellectual property is wrong, but it shouldn’t be protected at the cost of free speech and an open Internet”
“SOPA is a perfect case of a disproportionate reaction to a real problem. Lawless websites full of pirated content are a real problem, but breaking the Internet isn’t the solution”
“This proposed legislation is akin to having libraries monitored, or even shut down, because there is a chance that a book may contain a piece of plagiarized work”
“IP is a precious thing. For example, every writer on PC Mag has had their work pirated at one time or another. However, this legislation goes” too far
“There is definitely a need for content owners like movie studios and music labels to protect their content from piracy, but the proposed legislation isn’t the answer.”

This is the type of response that almost all the SOPA opponents have taken, such as Facebook and Mark Zuckerberg, which said that

“‘…rogue foreign sites that pirate American intellectual property or sell counterfeit goods pose significant problems for our economy,’ but PIPA and SOPA ‘are not the right solution to this problem, because of the collateral damage they would cause to the Internet.’”

This type of argument is extremely common. Depressingly common.

And not only do most opponents of SOPA accept the basic legitimacy of copyright, they also accept the RIAA/MPAA propaganda about “piracy” imposing billions of dollars of “cost” to the economy every year — even though there is no evidence of this.

The problem is that copyright obviously infringes free speech and other individual rights. This is no surprise, given its origins as a tool of censorship. As the Supreme Court recognized in its most-recent copyright decision, Golan v. Holder (the case authorizing Congress to re-copyright public domain works), “Concerning the First Amendment, we recognized that some restriction on expression is the inherent and intended effect of every grant of copyright.”

It is widely recognized that copyright (and even patent) restricts freedom of speech and expression. By assuming that copyright is legitimate — as the courts do — and that the First Amendment protects freedom of expression, a balance must always be found between freedom and censorship. And this is the dilemma most people find themselves in when they start with the premise that we must protect intellectual property rights, but we can’t “go too far” because otherwise we would harm free speech (and the open Internet) “too much.”

Obviously, there is a conflict between copyright and censorship and government control of ideas on the one hand, and freedom of expression and the open Internet on the other. This is being increasingly recognized. Leo Laporte recognized this in a recent episode of This Week in Tech. You have to choose: the Internet or copyright, he observed (opposed to technocrat Nilay Patel).

In the aftermath of the SOPA battle, we have people finally asking important questions. The Washington Times questions copyright abuse in its opposition to the Golan decision. The Daily Caller questions copyright’s legitimacy. Mark McKenna at Slate, in “Don’t Stop at SOPA,” asks: “SOPA and PIPA are (almost) dead. Now can we talk about the law that already exists?” Glyn Moody at Techdirt asks the important question: “OK, So SOPA and PIPA Are Both on Hold: Where Do We Go From Here?”

And what is the answer? Some people are hinting at it, or directly suggesting it: Abolish copyright. As Rick Falkvinge observes in “It Is Time to Stop Pretending to Endorse the Copyright Monopoly”:

“…the copyright industry is actually right that these ridiculous laws are needed to sustain the copyright monopoly. General-purpose networked computers, free and anonymous speech and sustained civil liberties make it impossible to maintain this distribution monopoly of digitizable information. As technical progress can’t be legislated against, basic civil liberties would have to go to maintain the crumbling monopoly. And these are the laws we’re seeing on the table.

“There comes a tipping point when somebody says that this entire system of cultural monopolies is absurd. A tipping point where the part before the ‘but’ is unceremoniously and collectively dropped, the part that didn’t count, anyway. A tipping point in which everybody just stops pretending to support it. I think it is time to create that point on the history line.”

Falkvinge here recognizes that if you support copyright, you should support SOPA. And conversely, if you oppose SOPA, you should oppose copyright. Copyright is the problem, people.

We are at a moment in history when people who have absorbed the idea of copyright, but who are not ideologically committed to it, have seen that it conflicts with more deeply held values: freedom of expression, commerce, digital life, the Internet. They are seeking a framework, a way to coherently express what they sense is wrong with escalated copyright enforcement. We need to let them know: The problem is copyright itself. If you have copyright, of course you want to enforce it. All the problems we see are merely symptoms of the copyright mentality.

We must press our fleeting advantage to let our halfhearted allies know that their intuitions are right: Censorship and SOPA and state control of private property and SOPA are wrong. And this means copyright, which is the engine behind all these things, is wrong, and must fall, or at least be radically scaled back, not strengthened.

The argument against patent and copyright is not a socialist or liberal one. It is, in fact, rooted in respect for private property rights, capitalism, the free market and competition. A coherent understanding of private property and free markets reveals that copyright is an anti-competitive grant of state power for purpose of censorship or favoritism that can only seek to undermine private property rights and empower the police state — as we are seeing now.

I remind our anti-SOPA brethren that the battle is far from over. They opposed SOPA and PIPA, but where were they when the 1998 Digital Millennium Copyright Act (DMCA), which has led to so much persecution and harm to the Internet, was enacted? Where were they in 2008 when George Bush signed the PRO-IP Act, which was instrumental in the FBI raids in New Zealand on the Megauploads principals, a day after the alleged SOPA blackout protest victories?

And what about the Golan decision, released the day of the SOPA blackouts, authorizing Congress to re-copyright works long in the public domain? What about the one-year federal prison sentence handed down to a man for uploading a copy of the Wolverine movie? What about the British student faced with extradition to the U.S. for having the wrong links on his website?

Where were they when President Obama signed ACTA (unconstitutionally, without Senate ratification), a global Internet treaty even worse in some ways than SOPA? Right now, nations are negotiating in secret the TPP (Trans-Pacific Partnership), an “agreement that the entertainment industry is betting on to get SOPA-like laws introduced around the globe.”

In other words, the dangers of SOPA are already here. This is because of copyright.

The problem is that all the people opposing SOPA undercut their opposition by acknowledging the importance of copyright and IP by condemning piracy. It is admirable that they are taking the ride side of the chasm caused by their cognitive dissonance, but dissonance it is. If you support copyright, you oppose piracy, and you support the state’s existence and its attempts to enforce these “property rights.” You cannot have both copyright and Internet freedom/freedom of speech.

The threat here to property rights, to individual rights, to Internet freedom and freedom of speech and expression and the press comes from copyright itself. We must strike at the root. SOPA is just a symptom of the disease. The disease is copyright.

Everyone is trying to treat the symptom — enforcement efforts like SOPA — with halfhearted treatments like labeling the response “disproportionate” or going “too far.” This is like trying to treat a brain tumor by taking Tylenol — sorry, acetaminophen — in response to the headaches caused by the tumor. All opponents of SOPA and censorship, all denizens of the Web and proponents of freedom, must oppose copyright itself (and patent too). Those libertarians and others who oppose SOPA and who are for copyright reform, but who are not for copyright abolition, should realize that a modest, fair, efficient, “reasonable” or “sensible” copyright system is completely impossible.

Since the dawn of copyright, its scope, length, penalties and enforcement have only increased, because of the relentless pressure by special interest factions like Disney, the RIAA, the MPAA, and other content providers and entrenched interests. As we can see with the pressure to adopt SOPA, PIPA, PRO-IP, DMCA, Berne, WIPO, TRIPS, COICA, Sonny Bono/Mickey Mouse Copyright Term Extension Act, ACTA, TPP and other measures (see “The Mountain of IP Legislation”), the Big Content interests are relentless and will not stop pressuring Congress and other legislatures to expand the war on information sharing and the Internet.

Even if we had a less-noxious copyright system — say, one with 10-year terms and less draconian penalties and enforcement — it would soon metastasize into what we have now, just as it has done (originally 14 years, now it is over 100). So a modest, “reasonable” copyright system is really off the table.

The question that SOPA opponents have to ask themselves is would you rather have today’s copyright system, with its draconian terms and penalties and continual pressure to expand and internationalize it, or no copyright at all? Only one of these choices is compatible with opposition to SOPA and to censorship. The only way to stop SOPA-type provisions and to maintain Internet freedom is to get rid of today’s copyright system.