A VC: A Post PIPA Post:

these two bills were drafted by the MPAA and the RIAA and walked into Washington without an iota of conversation with the technology industry. I can’t tell you how many Senators and Representatives have told me that they were told by the MPAA and the RIAA that the technology industry was on board and that these issues would not impact the Internet and tech community adversely. This is no way for one industry to propose that Congress regulate another industry. I think it is absurd that one industry would have the arrogance to think it is appropriate to ask Congress to regulate another industry for them. And yet that is what went down on these bills.

Back in 1988 (before many of you were potty trained…), I wrote this April Fools joke for the net. the in-jokes are a bit dated, but this part sums up the attitude of the internet then, and through the years:

Note: This conference is a rescheduling of the conference originally
scheduled for October, 1988 but cancelled after the United States Department
of Commerce decided that the material was too sensitive to allow
non-American citizens to read (including the material written by the
Canadians on the committee). Because of this, the conference has been moved
to Canada, which doesn’t have a complete Freedom of Speech written into it’s
constitution, but has better things to do than worry about ways of
circumventing civil rights. Americans having trouble getting their papers
cleared for distribution at the conference should contact Professor Shikele
about setting up a direct uucp link for the troff source.

For many years, the net was too small for the authorities to worry about, and this “wild west” mentality ruled, that the rules didn’t apply. And in many cases, they didn’t. As the net has grown and gone mainstream, this attitude has continued, although increasingly, whether it’s been the companies stomped in court when they became too annoying (like Napster) or countries like China implementing massive censorship firewalls (and the accompanying controversies as companies have to decide whether to go along with them or not).

The day the net went dark over Sopa is, to me, the day the Internet grew up and became an adult. Instead of thinking we can just sneak around doing what we want in the alleys and not get caught — we now realize we need to sit at the table with the adults and talk (and argue) with them as adults. The net mobilized and forced some major and entrenched powers to back down. They won’t get caught by surprise next time, and don’t for a minute believe they’re done with this.

But, and it’s a big but — neither will we, both collectively as “the internet” and the big companies that drive the net like Google and Apple and Facebook. They clearly realize they can’t let others drive the agenda and sit on the sideline, so you can expect everyone to get more involved in the process in Washington — because like that game or not, we can no longer pretend we’re immune to it or can ignore it.

I think the entertainment industry badly misplayed their hand through arrogance, and I think they’re going to regret it.

Because I think they woke the sleeping dragon, and the dragon now has their eye on them. They won’t be able to sneak their way through Congress without a fight, and many of their allies in Congress now realize that the fight is going to require them to take sides. And I bet a bunch of them will realize the tech industry is a better side to be on.

But now is the time for those companies that represent the industry and the net to make it clear to Congress that they expect a seat at the table in future discussions. And you can bet, the entertainment industry won’t like that. Not that I care what they think…

The President’s Post-SOPA Challenge: All Right, You Come Up with a Solution!:

The Internet and politics have a way of magnifying each other’s faults. Depending upon which source you read this morning, President Obama either came out forcefully against SOPA and PIPA anti-piracy legislation on Saturday or he staked out a position enabling himself to back away from opposing it outright.

 

Buried in-between the apparent opposition and the apparent ambivalence is the most important part of Saturday’s statement, which would otherwise resound like a clarion call: “Rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right.” The actual Obama Administration statement itself may have been as good a compromise as King Solomon himself may have managed in this environment: Speaking on behalf of the administration, a trio of technology officials including the U.S. CTO came out against all the principles that the populist movement against SOPA claimed to be against, without Mr. Obama having to personally stand against the entertainment industry which supported the legislation.

 

It’s good to see the SOPA bill pushed back. I’m not convinced that the solution lies in tweaking the bill. The bill itself is a sign of larger conflicts that I’d like to see us help Congress grapple with, and I think if we do that, it will lead to understand how to find the compromises needed to solve the problems that led to the introduction of SOPA.

If you take a step back from the bill itself, the underlying problem is that the current laws around copyright simply don’t cope well with the reality of the internet and with digital media content in general. I don’t think we’re going to solve the issues surrounding SOPA until we grapple the bigger issue of copyright and sharing rights in the internet age.

It’s not just that the big media organizations have ben trying to protect their existing business models, but they’ve been using this transition to try to push back and reduce or remove rights that exist as well — not only have there been consistent attacks on the right of first sale doctrine, we’ve seen organized attacks on the entire concept of fair use, and as we’ve started seeing a shift to ebooks and electronic publication, even the basic concept of lending a book to a friend has been restricted; just try to lend a Kindle book to someone, even your spouse (that doesn’t share your Amazon account) — it’s now up to the publisher to allow this, or the Kindle won’t let you. Compare that to a paper book and you see how this entire fight isn’t just about stopping piracy, but that it’s an attempt to erode other existing rights for sharing, in ways that, of course, benefit the publisher (at least in the short term) by ‘encouraging’ unit sales.

So to me, it’s time to have this discussion in Congress — what does Copyright mean in the internet era, and how do we update it to deal with the realities of electronic media, of mashups. How do you reconcile a media owner’s right to choose (and license for sale) how their media is going to be used with the interests of an individual who might want to resell his legitimate copy when they’re done, or loan it to a friend, or mash it up in some fun way.

If it was up to just the big media companies, none of that would be allowed, which goes far beyond simply protecting the equivalent processes of the printed media world but in fact strips away user rights that are currently accepted there.

This is a big, hairy, complex problem. Before it’s done, both sides (the big media folks and the “we want to share this stuff” side) will have to compromise. Somewhere along the way, we’ll probably have to deal with Orphaned Works issue. We need to take a close look at Creative Commons and integrate it’s concepts into real copyright law. We need to protect a creator’s right to earn income from their work, but we need to understand where we can draw lines around fair use and make sure that concept is strengthened, not weakened or destroyed (I would love to see fair use and Creative Commons non-commercial licenses go off for a long weekend and bring back something we can use as a model here). We need to understand how personal loans of electronic media can be managed; we need to understand how to allow first sale doctrine transfers in an electronic world. The answer from the big media folks (“all of that has to go away”) can’t be allowed to be turned into the new rules — and for the sake of the media folks, too, for the more they try to lock things down, the more they’ll encourage people to go around the rules (and be termed pirates, which they may or may not be). Piracy will aways exist; a rational set of reasonable use restrictions — most people would live within and accept.

The compromises — and the fight over them — won’t be easy. But I think this is the path we need to take to get to these solutions. Until we understand how the basic concept of copyright needs to work in the internet age, we can’t figure out how to legislate making it work, and the existing copyright rules and concepts are horribly broken in an electronic media age. So it’s time to get started, and figure this out.

And I think we can, with some work. People like to rag on the DMCA, but as someone who’s dealt with it both as a content creator and as an administrator, it’s not awesome, but it works, and it has the checks and balances needed to generally let both sides have a say. There are flaws in it, and flaws in how some sites implement it (not everyone handles appeals and the process beyond the initial take-down well), but overall, I think it does a better job than it’s given credit for many days. The one thing I think it’s missing is a “vexatious litigant” aspect where people who are found to be abusing the system can be banned from making new claims; if we added that, it’d be a hammer to help keep some of the media companies that have been “over enthusiastic” about filing take downs in better check (imagine if Youtube had the right to tell, say, Universal, that they’ve filed too many failed claims, and therefore, they can file no more claims without doing so through a court for approval. That might slow down some of their enthusiasm for taking down stuff that falls under fair use, and give people more incentive to push back when they do).

I’m worried that if we don’t start having this discussion, we’ll end up trying to solve these issues by using the existing laws and processes, and they’re broken. And if we try that path, that’ll work to the big media’s benefit. So what I suggest is it’s time for us not to go to Congress and fight SOPA, it’s time for the tech leaders to go to Congress and start lobbying to help them get educated on copyright and our need to update it to the digital realm — and through that, work for a solution to these issues that SOPA is trying to fix (by taking a fireaxe to them…)