The good news about the White House’s response to an anti-SOPA petition is that it raised the discussion to the level of principles, arguing against “disrupting the underlying architecture of the Internet.” That is where it needs to be.
The bad news, as Tim O’Reilly eloquently explores, is that the White House makes a gross and unsubstantiated assumption:
Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders.
In the entire discussion, I’ve seen no discussion of credible evidence of this economic harm. . . . In my experience at O’Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O’Reilly books would never have paid us for them anyway. . . .
As I wrote in What Would Google Do, novelist Paulo Coelho found that piracy spread his name and reputation and found him new readers in new lands …. so he pirated himself and sold more books. The man has sold more than 100 million.
This part of the discussion — the justification for SOPA and PIPA in whatever form — needs to be based on principles and on facts.
The question of fact is difficult to answer as it is an attempt to prove a negative: How do we know how many copies of a work pirates would have bought if they hadn’t pirated? How do we know how many more people discovered and bought a work because it was pirated? How do we differentiate between shrinking industry sales caused by piracy or by a new abundance of competition?
The matter of principles is this: Where will the White House and government put their priorities: in protecting the interests of a shrinking industry or in protecting the interests of innovation, entrepreneurship, and economic expansion? Will they favor protecting the interests of a closed industry or the freedom of speech?
That is why we must raise this discussion to the level of principles. That is why I wrote Public Parts, to help spark a discussion of principles. These, once more, are the principles of publicness and an open society I propose in the book:
I. We have the right to connect.
If we cannot connect, we cannot speak. That is a new and necessary preamble to our First Amendment. Finland has declared internet access—high-speed at that—as a right of citizens. Whether countries should subsidize and provide access is a separate question. But once access is established, cutting it off should be seen as a violation of human rights. That’s what a 2011 United Nations report said. “It’s now a basic human right to have internet,” [former] Thomson Reuters CEO Tom Glocer told media executives in the Middle East. “Systematic denial of freedom of accessing information will lead to a revolution.”
II. We have the right to speak.
Freedom of speech is our cultural and legal default in the United States. That First Amendment protection should extend not just to information and opinions delivered by text but also to information delivered by applications and data. Yes, there need to be limitations—on child pornography online, for example. But beware the unintended consequences of attacking a specific problem with an overly broad response. To fight child porn, Australia proposed mandatory filters to block content—filters that could be used against any content. We cannot manage everything to the worst case, to that which might offend someone, to that which could happen. We must not live by the lowest common denominator of fear and offense and the highest watermark of regulation, diminishing our most precious right of speech in the process.
III. We have the right to assemble and to act.
It is not enough to speak. Our tools of publicness enable us to organize, to gather together—virtually or physically—and to act as a group to demonstrate or to build.
IV. Privacy is an ethic of knowing.
We need protection of privacy. We also need to adapt our norms of privacy to new social tools and behaviors so we can better understand when something is said in confidence, when information should not be used without consent, what the harm is of spreading information, and how to give people more control of their information.
V. Publicness is an ethic of sharing.
The foundation of a more public society is the principle of sharing: recognizing the benefits of generosity, building tools that facilitate it, and protecting the product of it.
VI. Our institutions’ information should be public by default, secret by necessity.
Openness is a better way to govern and a smarter way to do business.
VII. What is public is a public good.
When public information or the public space is diminished, the public loses. Secrecy too often serves the corrupt and tyrannical.
VIII. All bits are created equal.
When anyone gains the power to decide which bits, words, images, or ideas can or cannot pass freely through our network, it is no longer free.
IX. The internet must stay open and distributed.
“Let’s give credit to the people who foresaw the internet, opened it up, designed it so it would not have significant choke points, and made it possible for random people including twenty-four-year-olds in a dorm to enter and create,” says Eric Schmidt.
Most relevant to the discussion of SOPA are the last two. If anyone restricts any bit — whether that is China restricting searches or India restricting what it says is offensive content or the U.S. restricting what someone calls piracy — then no bits can be assured to be free. If the architecture of the net is altered to enable the U.S. government to block alleged pirates, then any government can use that power to block anything.
My response to the White House’s response is to ask what is more important: protectionism for a fading industry or the future of speech?