Onward, Downward

By 2011, the existential crisis of the digital age—to pay or not to pay—remained unresolved as ever. A decade of dedicated handwringing on the part of the music industry and its observers, beginning with the Napster controversy, ended not in progress for creative culture, but in the trendy nihilism of The Pirate Bay and a cottage industry of New Media prognosticators who had little stake in the outcome for artists or creative industries.

Meanwhile, record sales continued their terminal slide. In the first five weeks of 2011, three different albums broke the US record for the lowest-selling album to place at Number One since SoundScan started tabulating the figures in 1991.1 Crossover country-pop princess Taylor Swift and the rock band Cake, a relic of ’90s alternative radio, each held the dubious distinction until singer-songwriter Amos Lee unseated them, achieving pinnacle status in the United States after selling just 40,000 total units in one week. Compared to ten years earlier, when Number One albums moved close to one million units on a semi-regular basis, the collapse of the record industry was ever more real.

An unending parlor game commenced: when would the record industry finally bottom out? Would it ever? Overall record sales hadn’t increased since 2004, in the middle, as it so happened, of the RIAA mass lawsuits. By early 2011, the recording industry wasn’t just in a down period—it appeared to be dying a slow, heaving death in front of our eyes at the hands of rampant digital piracy and all the confusion it spawned.

The global entertainment industry, however, still accounted for tens of billions of dollars each year in sales and had the long tradition of copyright law on their side. In the United Kingdom, France, Spain, Australia and New Zealand legislation intended to stem the tide of digital piracy was debated or passed into law. “Graduated response” or “three strikes” schemes were implemented, in which those users caught file sharing would be warned at first, then punished with fines, bandwidth throttling (in which the amount of data a consumer can transfer is limited), or temporary suspensions of user Internet access. Courts in Ireland, Belgium, Italy and the Netherlands began ordering Internet Service Providers to block access to services like The Pirate Bay. Only a few independent film companies were still pursuing litigation against individual downloaders and major entertainment companies seemed to understand the hopelessness of that strategy. They turned instead to attacking the problem through the courts and through legislation that focused on the major facilitators of piracy, like Internet Service Providers, search engines, public cloud storage companies like Megaupload and torrent trackers like The Pirate Bay. These measures were balanced with graduated response policies for consumers that would hopefully push them toward licensed services like Spotify, Pandora, Netflix, Hulu or iTunes. In 2011, this strategy came to the United States in the form of the Protect IP Act in the Senate and its companion bill in the House of Representatives, the Stop Online Piracy Act (SOPA).

SOPA was the first piece of legislation scheduled to come to a vote, so it garnered the lion’s share of attention. The United States had been seizing hundreds of domains of domestic websites, found to be dedicated to copyright infringement, for years through the Immigration and Custom’s Enforcement (ICE) wing of the Department of Homeland Security. One music blog, djaz1.com, was apparently seized in error in 2011 resulting in a serious black eye for the agency, but the illegality of the hundreds of other sites closed down by the agency was never questioned. Sean Lovelady of the California-based IMAGiNE Group was convicted of willful distribution of copyrighted movies in 2012 by the ICE. Lovelady plead guilty and faced up to five years in prison and a fine of $250,000.2

The ICE enforcement measures, mixed with P2P service Limewire being convicted of copyright infringement by a New York District Court in 2010, after four years of legal wrangling, provided a stark disincentive for any company playing fast and loose with copyright law in the United States. But the ICE had no authority to prevent US consumers from using offshore P2P services like Sweden-based Pirate Bay or any number of other services based around the world. Enter, SOPA.

SOPA sought to restrict the United States market from overseas websites that violated United States copyright law. If either the Attorney General’s office or a private rights holder believed a foreign site was, to quote the legislation itself, “dedicated to theft of US property;” was “used by users within the United States;” and was “primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator primarily for use in” copyright infringement, “detailed” evidence would be brought before a Federal judge.3 If the Judge were to find the evidence to be sufficient, the court would serve an injunction to block access to the site while the defendants had five days to provide counter claims, in accordance with the Federal Rules of Civil Procedure. If a defendant could not provide sufficient evidence that they were innocent, Internet Service Providers under US jurisdiction would be ordered to block access to the website through the Domain Name System (DNS); websites and search engines would be required to make “reasonable” measures to filter hyperlinks that led to the offending domain; advertising networks and payment processors would also be ordered to terminate their commercial associations with said sites. If any of the above parties could provide evidence that they were unable to comply with the court order, they would be under no obligation to do so. However, a website, ISP or payment processor that was found to be willfully ignoring or circumventing the court order would be liable. Otherwise, the court order would have been meaningless.

SOPA was a broad and biting piece of legislation that attempted to root out the “worst of the worst” violators of copyright, as the bill’s champions from the entertainment industry and labor unions claimed. The Digital Millennium Copyright Act (DMCA), which placed the burden on rights holders to file complaints of infringing content or links, offered the “third parties” who had infringing content on their networks “safe harbor” from liability, so long as they complied with takedown requests and didn’t “knowingly” host or distribute infringing content on their networks. The problem with the DMCA was that, if an infringing link was taken down, a new link could appear on a public storage service almost immediately, rendering the process pointless for many rights holders, especially independent ones who didn’t have the time to file complaints for hours each day. US-based sites that were found “dedicated” to infringement were already liable under United States law. Their domains could be (and were) seized by the ICE and they could be sued for knowing infringement by rights holders in civil court. In other words, third parties based in the United States, like Twitter or YouTube, would be under no greater legal liability under SOPA. Third parties were already liable for “knowingly” ignoring the infringing links on their sites.

If a foreign site was ruled by a Judge to be “dedicated” to infringement, the burden would now be mostly placed upon payment processors and ISPs. Internet Service Providers had long been vilified by the entertainment industry for profiting off of the consumer demand created by digital piracy and holding up any efforts at enforcement. But ISPs became more cooperative, as companies like Comcast and Time Warner also owned media companies that relied upon digital enforcement, and tacitly supported SOPA.

But from the technology sector, there were early signs that the legislation was seen as an existential threat. As early as May 18th in 2011, Google CEO Eric Schmidt warned that SOPA measures were classic cases of government censorship. As reported by The Guardian, he said, “If there is a law that requires [Domain Name Systems] to do x, and it’s passed by both houses of Congress and signed by the President of the United States, and we disagree with it, then we would still fight it…. I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems. So, ‘let’s whack off the DNS.’ Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say ‘I don’t like free speech so I’ll whack off all those DNSs’ – that country would be China.”4

SOPA arguably went too far to combat infringement. The legislation could have focused entirely on cutting off payments and advertising to offending foreign sites, leaving out the site-blocking mechanisms for a later piece of legislation if still needed. The Private Right of Action, which allowed private rights holders the ability to trigger the mechanisms of SOPA, was similarly unnecessary and gave credence to criticisms that the bill was overly broad and a ticket to the RIAA to take down whatever site they saw fit. Both the Wall Street Journal and the New York Times published editorials supporting the aims of SOPA but calling for the legislation’s language to be tightened.

However, most criticism of SOPA flew badly off the rails, offering paranoid predictions that had little basis in truth. No one disagreed with the law’s intention, which was to stifle foreign sites “dedicated” to infringement and enabling mass piracy, and many critics vocally agreed with the intentions. Rather, they leveled a series of unfair and misleading critiques. SOPA was a “censorship” bill which would equate the United States with states like China and Iran who do not respect freedom of expression. By seeking to shut down websites, any website, SOPA was called an attack on legitimate speech. Because the measures went into effect quickly, the law violated Due Process. The bill was written by lobbyists for the entertainment industry and served to preserve corporate profits, while supposedly destroying the P2P infrastructure that new artists relied on. SOPA’s measures were draconian and worried Internet users were told that Tumblr, YouTube or Facebook could potentially be taken down for having even a single infringing link on their network. Consumers who uploaded even a single infringing link could be punished with up to five years of jail time. And SOPA wouldn’t even solve the problem, because the blocked websites could still be accessed by just typing in the underlying IP address (similar to a website’s telephone number) rather than the domain name.

Websites like FreeBieber.org, AmericanCensorship.org and IWorkForTheInternet.org encouraged users to fight SOPA and other attempts at destroying the “open” Internet through copyright enforcement. These sites provided readymade petitions to sign and letters to be sent to local politicians. A slick online video on the dangers of SOPA’s Senate companion bill became an introduction to the issue for many. In the video, a young male voice warned of the bill:

Lots of trailblazing websites could look like piracy havens to the wrong judge… wherever people express themselves, make art, broadcast news or organize protests, there’s plenty of tv clips, movie footage and copyrighted music mixed in…This is the Internet we’re talking about. It’s a vital, vibrant medium. And our government is tampering with its basic structure so people will, maybe, buy more Hollywood movies. But Hollywood movies don’t get grassroots candidates elected, don’t overthrow corrupt regimes, and the entire entertainment industry doesn’t even contribute that much to our economy. The Internet does all these and more…[The entertainment industry] has a history of stretching and abusing their powers. They tried to take a baby video off YouTube just for the music playing in the background…The question is, how far will they take all this. The answer at this point is obvious: as far as we’ll let them.

The end of the video provided a link to FightForTheFuture.org, which also provided easy ways for concerned Internet users to get involved. Fight For The Future led Amercian Censorship Day on November 16th 2011, and rallied websites to place fake banners across their home pages, illustrating the censorship that was to come thanks to SOPA. The day led to the first surge in greater awareness for the supposed evils of the legislature. On December 22nd, a user on the Internet forum Reddit said that he was taking dozens of his own domains off of the web hosting service GoDaddy, on account of their support for SOPA. By the following day, a new website called GoDaddyBoycott.org was live and helping facilitate the boycott. It only took another few days before GoDaddy publicly switched its position on the legislation.

Just before the New Year of 2012, talk began circulating on tech blogs of the idea for a wider protest of SOPA. Cnet reported that some in the tech industry were considering a “nuclear option.” “When the pages of Google.com, Amazon.com, Facebook.com, and their allies simultaneously turn black with anti-censorship warnings that ask users to contact politicians about a vote in the US Congress the next day on SOPA, you’ll know they’re finally serious,” wrote Declan McCullagh.5 Markham Erickson, leader of the NetCoalition, a trade association for the tech industry, said of the blackout, “There have been some discussions about that. It has never happened before.”

On January 10th, Reddit officially announced that it was going forward with a blackout of its own site on January 18th, the day of a SOPA-inspired hearing at the US House of Representatives where Reddit co-founder Alexis Ohanian was scheduled to testify.6 As a few other websites announced their own participation in the boycott, the attention, phone calls and letters being sent to politicians through websites like SopaStrike.com were already having an effect. Over the weekend, SOPA was stripped of its site-blocking provisions, the very provisions that garnered attacks of “Censorship.” The hearing on January 18th, which was the basis of the protests’ timing, was canceled. But the blackout went on with participation of Google, WordPress and Wikipedia. Millions heard of SOPA for the first time, learning that the bill could close down their favorite social networking sites or send them to jail for a single infringing link. The protest caused dozens of politicians to pull their support for SOPA and the bill died, along with PIPA.

On the popular technology blog TechCrunch, David Binetti gloated over the victory in an opinion piece:

You’ve got to feel sorry for the SOPA guys. They did all the right things. They got legislation introduced that would protect their industry from inconvenient threats—like that pesky Internet… Not a single anti-SOPA lobbyist was hired for yesterday’s protest… A well-organized, well-funded, well-connected, well-experienced lobbying effort on Capitol Hill was outflanked by an ad-hoc group of rank amateurs, most of whom were operating independent of one another and on their spare time. Regardless of where you stand on the issue—and effective copyright enforcement is an important issue—this is very good news for the future of civic engagement.7

This above quote is interesting because it gestures toward the importance of copyright enforcement, while treating the defeat of legislation that attempted to address that very thing as a triumph, solely on account of its grassroots appearance. The bill’s defeat was automatically a good thing because, supposedly, one side had lobbyists, money and organization while the other side was just a rag tag group of tireless idealists, operating out of passion and love. The substance of the legislation and the ultimate question—well, what should we do about sites like The Pirate Bay?—was forgotten in the fog of war.

The day after the blackout, David Pogue, technology columnist for the New York Times, expressed his misgivings.8 In his article, titled “Put Down the Pitchforks on SOPA,” Pogue recognized the remarkable power of the protests, but didn’t flinch in the face of its flaws. “Of the millions joining in outraged protests,” he wrote, “I’ll bet that only a few have actually read the proposed bills. Everyone else is, no doubt, swept away by the Web sites’ shock language. These bills, say the opponents, will allow Hollywood to censor free speech, kill innovation, and ‘fatally damage the free and open Internet,’ as Wikipedia put it. Light the torches! Grab the pitchforks!” Pogue noted that the SOPA criticism was disjointed. Some argued for the goal of the bill, but criticized the methods. “But there is another group of people with a different agenda. They don’t even agree with the purpose of the bills. They don’t want their free movies taken away. A good number of them believe that free music and movies are their natural-born rights. They don’t want the big evil government taking away their free fun.”

“It was a sloppy success,” Pogue concluded. “The scare language used by some of the Web sites was just as flawed as the Congressional language that they opposed.”

Were the SOPA protests, leading up to the blackout on January 18th, conducted in good faith? The popular propaganda relied upon slippery slope arguments that assumed total villainy on the part of rights holders—who would viciously abuse the law to censor any website they saw fit—and total ineptitude on the part of the Federal Judges, who would decide whether or not enough evidence existed that a foreign site was “dedicated” to infringement. Such critiques preyed upon a paranoid attitude toward institutions, the rule of law and the entertainment industry. In the SOPA blackout, the chickens of the Decade of Dysfunction all at once came home to roost. Years of haphazard debates, misunderstanding of the issues and demonization of rights holders had left a population of Internet users who were vulnerable to propaganda from a technology industry that was (in the form of search engines and social media) facilitating what felt like their lives. As is the modus operandi of any propagandist, the ends of killing SOPA justified the means of misleading the public and preying on their distrust of the entertainment industry. SOPA was conflated into being an attack on the Internet itself, rather than an attempt to regulate online business practices that arguably were violating the legally held rights and incentivizing the illegal exploitation of United States citizens and business. And in the end, a law that very well may have had a positive impact upon the problem of piracy was turned into another warning to creators not to advocate for their own rights as citizens. Solutions to the piracy wars seemed to retreat evermore.

SOPA was presented as purely functioning to protect big media “gatekeepers” and their antiquated business models, but was this the whole story or just another piece of useful propaganda?

In August of 2011, Google was forced to pay a $500 million penalty for violating Federal law after admitting to knowingly assisting Canadian pharmacies who were using AdWords, Google’s online advertising service, to attract illegal prescription drug sales to US customers. Google was warned about the practice in 2003 but continued it all the way until 2009 when they realized they were under criminal investigation. In other words, they knowingly broke the law until they were caught. Another Google advertising service, AdSense, is commonly used on the same “rogue sites” that SOPA would have targeted.

During the SOPA brouhaha, an independent filmmaker named Ellen Seidler write a blog post detailing her efforts to use the mechanisms of the DMCA to protect her own work from being unlawfully distributed online. Seidler noted that Katherine Oyama, a representative from Google, one of the staunchest opponents of SOPA, had told the New York Times that “Google also ejected companies from its advertising system when notified of illegal activities.” Seidler took significant issue with the statement:9

Over the past year and a half I’ve repeatedly sent DMCA notices to Google reporting pirate sites featuring AdSense advertising (and links to our film). While most of the links I reported were eventually removed, most infuriating was the fact that the pirate sites didn’t skip a beat and continued to display Google ads aside their myriad pirated movie offerings. As far as I could tell… these AdSense accounts were rarely, if ever, disabled by Google. To add insult to injury, in most cases I usually discovered fresh links to our film posted on those very same sites a day or two later. AdSense accounts were never disabled despite clear evidence the reported site was in the business of pirating movies… Google makes a practice of sending DMCA notices to the Chilling Effects website, in a veiled effort to dissuade (intimidate) rights holders from exercising their rights under the law.

In the case of Seidler, Google was clearly profiting off of the existence of SOPA’s so-called “rogue sites” and doing a lousy job of complying with the law. The result was an independent filmmaker watching helplessly as huge corporations and distributing websites profited off of her work, and that of her creative brethren. Why did remedying such instances conflict with an “open” Internet? Did “openness” excuse exploitation? Was it fair to label the government protecting Seidler’s legal rights as a US citizen “censorship”? Did the foreign websites illegally distributing Seidler’s work deserve protection on account of free speech concerns?

Such questions, which got to the heart of the digital piracy problem, were consistently ignored by SOPA critics during the debate. Ellen Seidler and the independent artists like her may as well have not even existed. Believing in the myth that only huge entertainment corporations benefitted from copyright enforcement meant ignoring independent artists and their own views on piracy. A consumer wasn’t going to feel guilty violating the rights of a big corporation or Metallica, but what about Seidler and the millions like her who had sacrificed for their art and were just looking for basic fairness from the marketplace? Were we to ignore their condition based solely on the vague notion that “you can’t fight technology,” that any attempt to regulate digital commerce was hopeless?

In a 2010 article on digital piracy, The Atlantic reported, “Computational neuroscientist Anders Sandberg recently noted that although we have strong instinctive feelings about ownership, intellectual property doesn’t always fit into that framework. The harm done by individual acts of piracy is too small and too abstract. ‘The nature of intellectual property,’ he wrote, ‘makes it hard to maintain the social and empathic constraints that keep us from taking each other’s things.’”10

For me, it was those very same social and empathic constraints that were reawakened in Brooklyn, when I realized that the famous musicians I knew needed and deserved my respect and support. Immediately, the assumptions I held on digital piracy developed ugly cracks in their armor. The myth that enforcing digital copyright only had to do with big nasty corporations and whining rich artists kept our collective empathy in check for years on this issue, helped along by the fact that people like to have things for free if given the choice. In an attempt to re-contextualize the issue of digital piracy, or at least begin that process, I set out from 2009 through 2011 to speak with various musicians, representatives from record labels, record store employees, promoters—all from the independent music scene or having risen from it. Most of the interviewees had zero connection to the RIAA and, if they did, the connection was incidental at best. Perhaps these voices from the independent community could enlighten us on the realities of digital piracy and help us begin again on our journey for greater wisdom and, ultimately, solutions.

The Decade of Dysfunction thrust us further and further into the dense thickets until we were surrounded. Unable to see a way out, we accepted our hopeless entrapment as plain reality. Though unsatisfying, we had no choice but to accept it.

But streaks of blue still shone, barely, through the tangled wood. Something appealing was out there: clarity. It would take time, work and patience to cut a new path to that place of understanding. Despite the effort, the fleeting streaks of blue called forth with the promise of illumination. Perhaps a new world of beauty was waiting out there.

It is time to blaze a new path.