The Web protests that led to a collapse of support in the House and Senate for two ill-designed antipiracy bills are a cause for celebration. In their current forms, both the Stop Online Piracy Act (SOPA) in the House and the Protect IP Act (PIPA) in the Senate are heavy-handed and indefensible, attempts to shut down a handful of rogue pirate sites by changing the open structure of the Internet. In allowing the Justice Department to force Internet service providers to block access to websites that “enable” pirated content, the proposed legislation would pose serious threats to free speech.
But even as we celebrate the declining congressional support for these bills, we shouldn’t forget that this isn’t simply a fight about the future of free speech; it’s also a battle about whether the financial interests of the new media will triumph over those of the old media. And, if they do, it’s not clear that the public interest will always be served. As the protest song that sprang up this week put it, “Our web means more than lawyers, lobbies, and lies, so speak up before the Internet dies.” There are lawyers and lobbies on both sides of the debate, however, and neither side is devoted to the promotion of creativity for its own sake.
Ultimately, it’s too simplistic to see the copyright wars as a battle between idealistic tech companies that want information to be free, and the greedy old media that wants to preserve a dying business model. Instead, as Robert Levine argues in his new book Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back, the real battle is between two competing business models. On the one hand, there are the publishers, record companies, and movie companies that fund the content people want to watch and read. On the other, there are the tech companies, like Google and Facebook, that want to distribute content created with other people’s money and sell more ads as a result. By destroying the business model that makes it possible for AMC to invest in excellent shows like “Mad Men,” Levine argues, the tech companies will create a digital wasteland dominated by self-produced cat videos.
There’s much to be said for Levine’s analysis of the competing financial interests on both sides of the debate: The current system looks much better for the tech companies that distribute other people’s content than for the old media companies that fund it. And to the degree that it’s harder for artists and journalists to get paid for their work, the public may not benefit in the long run. What’s still unclear—and is important to figure out—is how great a role Internet piracy is playing in destroying the business model that used to allow old media companies to invest in authors, musicians, and movie producers, and support them over the course of a career.
Levine argues that “as piracy lowers the value of media, technology companies have essentially managed to set the price of music and videos and tried to do the same for books.” In a version of Wal-Mart capitalism, the argument goes, no matter what a movie or book costs to produce, Amazon and iTunes can sell it for as little as possible and make their money elsewhere—by selling iPods or kindles, for example.
But it’s not obvious that online piracy is the major factor in allowing tech companies to distribute content for less than they pay for it. Levine cites the example of the music industry, which was so spooked by the proliferation of pirated music on Napster that it struck a poor deal with Apple, replacing the sale of $15 albums with 99-cent songs. Yet there’s little evidence that the same result would not have occurred in a world without Napster: Individual bands might have struck enough deals with Apple that the music industry would still have been forced to sell its content below the cost of production.
What we need, therefore, is more empirical research about the relationship between copyright enforcement and digital creativity. There is certainly a price below which authors and journalists won’t produce good work in the first place, and also a price below which the failure to promote authors, movies, and journalists ensures they never find the audience they deserve. But whether more vigorous copyright enforcement would solve these problems needs more study.
In the meantime, there are plenty of moderate alternatives to the unlamented SOPA and PIPA. The best solution, one that protects copyright without changing the architecture of the Internet, might lie in simple law enforcement, of the kind that ensures there’s less commercial child pornography available online than there was fifteen years ago. This is the approach taken in a 2010 report by Victoria Espinel, the White House’s copyright czar, which suggests that the best way of combating international piracy is to “enhance foreign law enforcement cooperation” and “strengthen intellectual property enforcement through international organizations.” Since the number of commercial pirate sites operating overseas is small—a couple dozen, by some estimates—tracking and identifying them, and prosecuting them in cooperation with overseas police forces, is a far more focused solution to the problem of Internet piracy than shutting down free speech for everyone. But will this be enough to save the old media’s business model, and the artists, musicians, and writers it has long supported? That remains an open question.
Jeffrey Rosen is the legal affairs editor of The New Republic.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.