Faith-based support of anti-communication legislation

Today many have been raising awareness of USA's SOPA and PIPA. I thought I would back up a bit from those specific initiatives, and discuss just how far apart people are on this type of policy.

I believe the major-labels and studios are pawns in a larger game being played by technology companies with monopoly interests (primarily Apple, Sony, and Microsoft) which make up and/or control BSA/ESA and thus IIPI. These tech companies manipulate the major-labels and studios into being the public face of policies which they know citizens and competitors in the high-tech sector will oppose. While today we are discussing SOPA/PIPA , it has also come in the form of Paracopyright and even Network Neutrality policy discussions.

As pawns, you can see the fear, anger and misinformation in the words in support of SOPA from the Motion Picture Association of America. There are so many levels to disagree with what they are saying, so I will only discuss a few.

"legislation is needed to stop foreign based thieves from stealing the hard work and creativity of millions of American workers."

Copyright infringement is not theft. While this type of Jefferson Debate has been going on for two centuries now, it is hard to take seriously people who still believe this false analogy.

We as a society may, or may not, agree that this type of activity is harmful. Our governments may make these activities illegal, but its impact is nothing like theft. If we are to make an analogy to an area of law related to tangible property, the closest thing to copyright infringement would be trespass. As we all know, trespass may be illegal but its legality does not suggest it is economically harmful. Trespass does not change the ownership of the relevant property, any more than copyright infringement changes who owns the monopoly right granted by copyright law.

There are big differences between trespass or infringement and theft. Any reasonable conversation about this area of policy must start from this basic recognition.

"protecting American jobs is important too, particularly in these difficult economic times for our nation"

This claim follows from a series of unproven assumptions.

  • SOPA would reduce infringement
  • reducing infringement would increase royalties (monopoly rents) to copyright holders
  • copyright holders receiving more monopoly rents would have an overall positive impact on the economy

I disagree with each of these assumptions, as I believe any independent study of these questions would.

  • the technology to work around SOPA restrictions for those who wish to infringe are trivial, and like similar initiatives like Paracopyright much of SOPA's impacts will be on non-infringers.
  • there is nothing to suggest that infringement is primarily a substitute for payment. There is quite a bit of evidence to suggest that infringement is often a response to the "not available for sale" problem, or for people accessing works that they would otherwise not have accessed at all
  • the government granted monopoly of copyright, and the monopoly rents that are able to be collected, has an impact on the overall economy comparable to taxation. Blindly believing that increasing monopoly rents will protect jobs is like blindly believing that raising taxes will protect jobs. There is a grain of truth in both, but generally the suggestions should be recognized as absurd.

Secretary Clinton's recent statement that "There is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the Internet."

This is where the rhetoric gets very twisted. China wishes to make radical changes to technology to stop communications that the government disagrees with, and the USA wishes to make radical changes to technology to stop communications the government disagrees with. They really are the same policies, with the only difference being relatively minor details about the specific type of communication that the government disagrees with. In both cases the governments are willing to impose through law radical changes to technology which impact far more than those who are participating in the disapproved communication.

While an over-simplification, one of the types of communication that China wishes to block is religious speech. There is a belief that religious speech can undermine the government, so this type of speech is censored.

The USA has this (as I suggest above false) belief that domestic and foreign infringement of government granted monopoly rights are devastating a large part of their economy. There have been no studies to determine the impact, positive or negative, of the current level of monopoly rights granted, or whether increasing monopoly protection will itself greatly harm their economy.

These government beliefs are faith-based, not something that is based on rigorous study of the policies in question. There are people in both western and eastern countries that agree and disagree with each of these governments.

The largest difference between these policies is that China is not trying to export its laws outside of China, while the USA is. The USA is even trying to bully China into changing their communications policy to more closely match the USA, something that I have seen no indication that China is attempting to do.

This is why I will continue to put far more efforts in opposing what the USA is doing than I will China. Even though Canadian companies help supply the technology to implement the "great firewall of China", I see little domestic support for importing China's communications policies into Canada. On the other hand, I see Canadian policy makers falling victim to the rhetoric from the USA, believing their claims without demanding the required economic and other studies.

As the government granted monopoly rights of copyright and patents expand to impact more and more activities, we as a society must re-visit the effectiveness of these policies at achieving their stated goals. I believe that just like taxation there can be too much and too little copyright and patent. Said in another way, copyright is to creativity like water is to humans: too little and you dehydrate and tie, too much and we drown and die.

We are already drowning in excessively broad and long government granted monopoly rights, and throwing more water at the drowning will not economically benefit creators. SOPA/PIPA and even the bulk of Canada's Bill C-11 is looking at the problem the wrong way, and will only make the existing situation worse.

I can wish we will get away from this problem soon, but I think the way our western political system is funded is working against us. I agree with much of what was said by David Gewirtz in his article: 5 reasons why SOPA, PROTECT-IP and other legislative idiocy will never die. This is partly why people like Lawrence Lessig moved his focus from technology law to Fix Congress First (Now: Rootstrikers).

We need to keep the pressure on these policies, recognizing that until we fix some of the failings of our government structures we will have to continue to fight the same silly battles. Canada has some policies, such as the banning of corporate and union donations federally, that put us in a bit better position compared to the USA, but we need to remain vigilant on this front as well.

Note: I sent a letter to my MP to let him know about the official SOPA/PIPA blackout day. I hope other Canadians consider doing the same thing.

See also: EFF: The Internet at its Best

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Correction: Economic and other studies

In the above I said the governments were "believing their claims without demanding the required economic and other studies."

I was reminded that studies have been done, for instance this one funded by Industry Canada.

The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study for Industry Canada

"Description: Industry Canada undertook a music file sharing study during 2006-07 to measure the extent to which music downloads over peer-to-peer file sharing networks, for which the sound recording industry receives no remuneration, affect music purchasing activity in Canada. The data used for this analysis are from a Decima Research survey conducted between April and June, 2006, on behalf of Industry Canada. The report, prepared by University of London researchers, Birgitte Andersen and Marion Frenz, found that music downloads have a positive effect on music purchases among Canadian downloaders but that there is no effect taken over the entire population aged 15 and over."