Last week marked the two-year anniversary of the (dare I say ignominious) defeat of the Stop Online Piracy Act or “SOPA.” The defeat of SOPA marked a bit of a watershed in American politics, as the legislation was stopped not by traditional means such as a Presidential veto or even a backroom hold by a senior legislator, but by a massive grassroots up-swell (complete with self-imposed blackouts of many popular web pages) who feared a purported government takeover of the Internet. Putting aside for the moment that a good deal of the objections to SOPA were based on sophistry and outright dis-information (indeed, a close reading of the manager’s amendment would have revealed that SOPA contained multiple legal safeguards before any takedown could occur), the hard fact remains that on-line piracy continues to run rampant, and we still have very poor tools to deal with the problem.
For example, a recent paper by Professor Bruce Boyden observed that MPAA member companies issued over 25 million takedown requests under the Digital Millennium Copyright Act (“DMCA”) in just a six month period. Not to be out done, recent press reports indicate that Google just received its 100 millionth piracy takedown notice from the recording industry. (There would have been quite a bit more, but apparently Google has a policy of capping the amount of piracy notices a copyright holder may send.) Certainly, the problem of on-line piracy is not going away; if anything, it is proliferating.
Which brings us back to the ultimate paradox of the SOPA debate: On the one hand, a recent survey found that a significant number of Americans are in favor of “strong enforcement of laws to protect against the sale of counterfeit and pirated goods.” Yet, if protection of intellectual property is such a nice idea, then why do Americans steal so much of it and, by extension, why did so many Americans fight so hard against SOPA? (Questions, by the way, that the aforementioned survey failed to ask.) The answer is simple: consumers value music and movies, and when pirated content is both easy to access and, probably more importantly, generally available for free, desire dominates conscience.
However, as we love to point out—particularly when it comes to the production and distribution of intellectual property—“free” is not necessarily the right price. This point was recently driven home to me in a speech last month by mandolin virtuoso (and one of my musical heroes) Ricky Skaggs before the National Press Club. As Ricky so eloquently put it (around minute 30.0),
“I wish people would pay [for my music.] Free downloads is just like me goin’ up and gett’n in your back pocket and stealing some money out of it and you [not] even know’n about it but you can’t do anything about it. *** People expect free stuff…”
As I contemplate the demise of SOPA and the takedown data, I can’t help but wonder if the U.S. Congress has the courage to do something real about piracy and copyright. The takedown data suggests people like free stuff and they like it a lot and often. The takedown data also suggests there’s probably a lot of profit in piracy. Given this, it seems obvious that any effort to curb piracy will face significant backlash both from industry and the public, a response so clearly revealed in the SOPA debate.
So as Congress undertakes its review of our nation’s copyright laws, it should keep the following in mind: First, theft of intellectual property reduces social well-being, even if we count the benefits to the thief and assume theft requires no resources. Second, Congress’s actions to mitigate theft, if effective, probably won’t be very popular.