William Neuheisel

SOPA solves the wrong problem. Let’s fix the right one instead.

The Stop Online Piracy Act is far from dead, but this week the White House released a statement rejecting the proposed approaches outlined in SOPA and PIPA .

The statement admits that the current legislation is unfixable, but tacks on the dubious statement that “online piracy by foreign websites is a serious problem that requires a serious legislative response”. The assumption here is that, yes, SOPA went too far, but we need to move forward by passing some sort of legislation to give new legal tools to rights-holders to stop piracy.

We are expected to uncritically, and without any evidence, accept the notion that piracy is a significant cause of harm to our economy. Quite contrary to the evidence, we are expected to believe that piracy can be stopped with some chimerical piece of legislation that will magically enforce copyright without infringing on free speech, open knowledge, or technological innovation.

Tim O’Reilly just published a great post explaining that all this is a misguided effort to fix the wrong problem. He points out that piracy is a business problem, not a legal one, and that the proper solution for content creators is to adapt smart business models.

I believe that instead of pandering to the entertainment industry, we need to be rolling back the already overreaching “property rights” and “legal tools” of the rights-holders that have allowed them to cordon off our cultural and intellectual commons for the private benefit of big record labels and film studios.

For almost a century, copyright has been gradually ratcheted up, both in it’s term and it’s scope of eligible subject material. The original term of copyright was 14 years, with the possibility for renewal for another 14 years. Both the original copyright and the extension required the author to file for the protection.

Today copyright lasts for the creator’s lifetime, plus 70 years and Congress changed the law so that everything created by anyone is automatically copyrighted, even if the creator doesn’t want it to be.

The raison d’être of copyright was not the individual ownership of the author, but the societal benefit of a thriving cultural commons. With the incentive of a short period of government granted monopoly, we encouraged creators to publish their work, and get it into the public domain as quickly as possible.

In the U.S.A., nothing at all has entered public domain since 1976 and will not until 2019 thanks to all those copyright extensions. Tape reels containing our cinematic and musical heritage are disintegrating into dust because they are still locked away under copyright, though their creators may be long-dead. We are not allowed to see or hear them, let alone build upon them. Soon, they will be lost to us and to posterity.

Rather than fight this encroachment on our common heritage, we are expected to grant still more concessions to a greedy legacy industry.

What was wrong with the original copyright term length? A 14-year monopoly is more than enough incentive for any creator, and they should be happy for it. Thomas Jefferson foresaw the dangers of intellectual monopoly and asserted that it was not a natural right. He made it quite clear that our government should only grant this boon to content creators so long as it created a clear public benefit for society.

It’s clear who benefits from today’s copyright laws, and it ain’t the public.