The SOPA/PIPA Question as a Quintessentially American Debate

With apologies, again, for delays. Enjoy this picture of subzero skiing as compensation/explanation for my prolonged absence.

How gratifying to see democracy work as well as it has during the SOPA debate. A cadre of lobbyists devise a plan to protect their interests inimical to both the people, and to the larger society; the people fight back; and with alarming alacrity, at a rate comparable to Republicans abandoning Mitt Romney, the lobbyists’ pet representatives jump ship. This is how it’s supposed to work!

For late-comers, the Stop Online Piracy Act is a bill introduced by the lovable Lamar Smith (R-TX), putatively drafted to end commercialized piracy of American intellectual property, especially by overseas actors (like China). This much of the goal is laudable, and drew presidential approval during Obama’s recent State of the Union Address. But SOPA’s mechanism obliterates the safe-harbor provided by the DCMA (the Act that allowed my old firm to successfully defend YouTube’s continued existence, against the assault of Viacom and other content providers), and contemplates a world where content providers may, by simply lodging a protest, see any site that hosts allegedly stolen content shut down without a hearing or chance of reply. Under extreme interpretations of the bill, as originally drafted, this site could be shuttered, in full, on the basis of a copyright complaint about any picture used here without permission. Like the above.

By this late hour, the threat appears at an end, with the Obama administration issuing a thinly-veiled veto threat. But in retrospect, I urge you to look at SOPA as part of a larger narrative, and one liberals (or progressives, if you prefer) blissfully appear to be making some headway. During the darkest depths of the Bush administration, more than a few commentators drew on Ben Franklin’s famous exhortation:

Any society that would give up a little liberty to gain a little security will deserve neither and lose both.

As a watchword for those worried about the nation’s slow slide into a police state. Freedom, the theory goes, involves risk, but it’s well worth the reward. A free society, which we declare ourselves to be, prefers to allow some chinks in our national security armor rather than to close them all at the price of our liberty of movement, conversation, and discussion.

SOPA presents an identical issue. We’ve come to value the internet as a place for free and unbridled conversation, which knits us closer together and enriches each individual’s cultural experience. The price of that liberty, though, is the continual risk of piracy, and the concomitant loss of profit that entails for content providers. By placing the burden of proof to establish piracy and shut down an offending site on content-owners, the Digital Millennium Copyright Act chose to deflect error towards freedom of expression, rather than airtight protection of intellectual property. SOPA proposed the reverse solution, and failed, to the benefit of all. It’s tempting to view individual skirmishes in the broader political landscape as isolated incidents, but to the extent the defeat of SOPA favors liberty over restraint, it inures to the benefit of the larger society.



  1. First, welcome back. Second, a DA? Huh. Third, I can’t think of anyone in Congress less qualified to be chair of the Judiciary Committee than Lamar Smith. Fourth, Big Hollywood’s pet Congressmen have been lying about opponents of excessive author’s monopoly and copyprivilege since at least the 80’s.

    Fifth, I like pudding.

  2. Welcome back and congrats on your new job.

    We’re actually having much the same discussion here in the EU about our proposed accession to the Anti-Counterfeiting Trade Agreement (, so I must say I’m not quite sure why you think this is such a “quintessentially American debate”. On the contrary, I’d say it’s rather becoming inreasingly a global one.

  3. Thanks both! (True regularity to return once I regain my arm strength from bringing my law books home from the old office…)

    Anyways, I certainly don’t mean to cast it as an exclusively American debate — just, it’s a conflict that can be said to occur along the lines of an ooooold American debate.

  4. I’d thought the main basis for European opposition to ACTA was that it violates some fundamental (possibly constitutional?) Continental privacy laws and expectations. The “it was written by the industries who will benefit, with no input from consumers it will harm or industries it will harm, and those industries that will benefit got everything they could ask for and more” argument I’d thought was coming mainly from this side of the pond. Although it could be that I associate the excessive duration of modern author’s monopoly with Europe due to blaming it for the Berne Convention. Personally, I think Queen Anne’s Parliament might have been the last legislature to get the duration right.

  5. It’s kinda complicated, because ACTA has really only become a topic for mainstream debate over here in the last couple of days or so, most likely inspired by SOPA/PIPA in the US. As far as I can tell, though, opposition is sort of coalescing around three items – expectations of privacy is important, certainly; but also the lack of transparency regarding the negotiation process, as well as a fear that the EU Commission and national governments are trying to ‘cheat’ their way into stricter rules, because it’s a treaty and not national legislation; and finally the freedom of expression/exchange of ideas/creativity angle is also quickly becoming more prominent, just as with SOPA/PIPA.

    In addition to all that, there’s a bit of a political tug-of-war developing between the EU Commission and the EU Parliament, because many of the Parliament’s members feel that the Commission is infringing on their prerogatives, by not keeping them informed and allowing them to participate in the process. So… it’s kinda complicated.

    1. Ah. Points 2 and 3 are the ones I’ve heard about here. Not Point 1, though.

  6. BTW, Marius, if you have the time and incination (don’t feel obliged if not), I’d actually be interested in your views on ACTA from a US perspective. At least over here, it’s being billed as the “big brother of SOPA”, but since it’s been a topic for such a short time, I’m only just beginning to read up on it now.

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