The Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) – or more specifically, the strong public responsesto them – have been all over the news of late, and commentary on the acts themselves is thick on the ground. I don’t propose to make it any thicker. Instead, I’d like to comment briefly on a statement made in the midst of the furor by the White House, as quoted by the New York Times:
While we believe that online piracy by foreign Web sites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.
So, the White House is looking for a “serious legislative response” to the problem of online piracy, but one that will not reduce freedom of expression, nor increase cybersecurity risk, nor undermine innovation and the dynamism of the Internet.
Well, good luck with that. Unfortunately, half of those three qualifications – one and a half of them, as I’ll explain – are fundamentally at odds with the project of protecting intellectual property. Is it possible to design a robust copyright-protection regime that avoids undermining cybersecurity? Probably so. But one that has no impact on freedom of expression or on the “dynamic, innovative global internet”? Can’t be done.
Here’s why. Let’s look at freedom of expression first. You can’t achieve intellectual property (IP) security without imposing restriction, either on access itself or on what can be done with information once it’s been accessed. Both of those types of restriction have a negative impact on freedom of expression. For example, you can’t increase the security of a composer’s copyright without limiting either my right or my ability to express myself by, say, creating a derivative work based on his music. There’s no way to increase IP security without restricting access to information and/or the use of information, and no way to restrict those things without reducing freedom of expression. So the question is: how much restriction on freedom of expression is acceptable in the pursuit of IP security? Anyone who (like me) believes that copyright is generally a good thing believes that there is indeed a reasonable trade-off somewhere. But the trade-off is unavoidable.
Now let’s look at the Internet’s dynamism and its fostering of innovation. Here the impact of security measures is going to be a bit more complicated, because although access or use restrictions will inevitably have at least some dampening effect on the Internet’s dynamism, they will have a more mixed impact on innovation. There are arguments to be made (and I am one of many who have made them) that IP protections can foster innovation and creativity by making those things more potentially rewarding to the innovator. If I can’t copyright a piece of writing or patent an invention, then my ability to make a living as a writer or inventor is compromised. (Commenters, please note that I didn’t say “eviscerated,” but “compromised.”) But there are also good arguments to be made that the restrictions inherent in IP law inhibit innovation by making some kinds of innovation criminally punishable. If you can only legally remix a composer’s music with the composer’s permission, then that fact will inhibit the creation of remixes. Composers tend to believe that this is a fair trade-off; remix artists, many of whom are able to derive highly innovative and creative music from the original work of others, often disagree. The big problem for policymakers is that these apparently contradictory lines of argument – that IP protection fosters innovation and creativity but also inhibits them – are both true, and therefore must be balanced against each other. It’s another trade-off situation.
So when all the SOPA/PIPA dust has settled, there will remain the same intractable reality with which we have been grappling for a couple of decades now: the world of information and the problems that it poses are quite a bit messier than the slogans on either side of the SOPA/PIPA imbroglio would suggest. SOPA and PIPA are not simply a proposed program of government censorship (no matter how picturesquely one poses with tape over one’s mouth); nor would these laws, if enacted, necessarily solve more problems for IP owners than they would cause. IP security comes only at the cost of restriction, and restriction always has mixed impacts on things that we value, such as freedom of expression, dynamism, and innovation. Faced with the very real problem of Internet piracy, neither the White House nor Congress has the option of designing an IP security regime (in the form of a “serious legislative response”) that avoids reducing freedom of expression, nor that maintains pre-regime levels of dynamism and innovation.
If we want more security, we’ll have to give up a certain amount of freedom. If we want more freedom, we’ll have to give up a certain amount of security. But who wants to hear that?