The U.S. Government vs. Networked Culture

Wow! The save-the-Internet protests by Wikipedia, Google, Reddit, Boing Boing and hundreds of other websites marks a watershed moment in the evolution of networked political expression. Millions of Internet users learned that Congress actually can cripple the open Internet in the manner of authoritarian regimes, albeit in the name of copyright law.

Such mass politicization is powerful stuff. Within 24 hours, Senate Majority Leader Harry Reid postponed a scheduled vote on the “anti-piracy” Web censorship legislation known as SOPA and PIPA (Stop Online Piracy Act and Protect IP Act). The abrupt turnabout was widely regarded as a face-saving move for the benefit of Judiciary Committee Chairman Patrick Leahy, a key sponsor of the bill.

Although protests had been building for weeks, the one-day shutdown of popular websites suddenly made visible a huge, alternative universe of citizens who are usually ignored in Washington, D.C. Suddenly the Old Guard could not broker their self-serving, insider deals in the shadows. Suddenly the Web demonstrated its power as a new sort of theater for organizing and representing the public to confront conventional governance.

It was delicious to watch so many politicians gingerly walk back their support for the bills. You could almost read their minds: “Holy Facebook! I had no idea that people felt so strongly about this stuff! I sure don't want to end up on a list of Enemies of the Internet just to satisfy Hollywood!” The official explanations for reversals went along these lines: “Ahem. There are some provisions in the law that I had overlooked which probably need to be given more thought.” You might say that.

I consider this Internet Paroxysm only the first salvo in a much longer drama. Online networks are transforming our political process and, one hopes, the terms of governance. Imagine if the energy, innovation and accountability of open source software development were applied to conventional government systems! It's obvious that open networks are more responsive, socially legitimate and knowledgeable than your average congressional committee. The latter are largely controlled and corrupted by monied interests, and rarely give a platform for ordinary citizens.

While Congress was getting a rude splash of cold water across its face, the U.S. Supreme Court, in a little-noticed decision, showed just how clueless it is about networked culture. Its 6-to-2 ruling in Golan v. Holder brazenly declared that the public domain is not “a category of constitutional significance.”

Huh? Did any of those six justices happen to use the Internet in the past week? Do they mean to say that the sharing economy, folk culture, scientific research, cultural tradition, Internet collaborations, open-access publishing, music remix and video mashups, etc., are extra-constitutional concerns?

The Golan case involved a 1994 law that brought U.S. copyright law into conformance with international copyright law. Sounds non-controversial. But to make this adjustment, millions of works that were already in the public domain were suddenly re-privatized and gratned copyright protection. Works that had been first copyrighted abroad between 1923 and 1989 – and then had entered the public domain – were suddenly yanked from the public domain and made eligible again for U.S. copyright protection. Suddenly millions of works – including Alfred Hitchcock films, Virginia Woolf books, images of Picasso paintings and symphonies by Prokofiev and Stravinsky – could no longer be used for free. For example, community orchestras that once performed Prokofiev's Peter and the Wolf in small venues for free now will have to pay $1,000 or more to rent sheet music for a single use.

The case was brought by orchestra conducts, teachers and film archivists who relied on free, public domain works. The Stanford Center for Internet and Society did the legal work on the case. (More details here.)

The plaintiffs in the Golan case had argued that this abrupt re-privatization of public domain materials violated that First Amendment. The new property rights and higher prices shut down free speech and restricted scholarly, educational and cultural uses of public-domain works. Worst of all, the new law did so “without providing any additional incentives for the production of new material,” said Justice Stephen Breyer. “The statute before us does not encourage anyone to produce a single new work.” He also noted that the law “abridges a prexisting freedom to speak.”

Writing for the majority, Justice Ginsburg made the remarkable claim that “the copyright clause does not demand that each copyright protection, examined discretely, operate to induce new works”! She believes that the international system of intellectual property only need do so in general. Pathetic. She is saying, in effect, that the market is the only serious means of disseminating information and culture, and its role must be privileged over public-domain disseminiation (via the Internet, for example) even if the marketplace is expensive, inefficient and needlessly limits access to the work.

The market über alles! The public domain, a trash heap of no consequence!

For good measure, Justice Ginsburg reassures supplicants that fair use law is an adequate source of free speech protection. Oh, that's a relief!  Unfortunately, it is well-documented how notoriously unreliable and difficult it can be for ordinary people to determine in advance what is protected under fair use, and then to vindicate their fair-use rights. With a few notable exceptions in certain creative sectors, fair use is little protection at all.

And so wealthy film moguls, aging legislators and out-of-touch Supreme Court justices try to renovate the decrepit alter of copyright law, and righteously demand that we prostrate ourselves before its blessings and pay tribute lest we be branded as "pirates" or "terrorists." They denigrate the remarkable vitality and growth of the public domain, casting it as a constitutional nonentity.

No wonder contempt for copyright law is exploding. No wonder civil disobedience and criminal law-breaking by groups like Anonymous are growing. The guardians of copyright law are cultural reactionaries. They don't get the Internet.  They have their fingers in their ears, and are singing “la, la, la -- I can't hear you! We don't want to change copyright law!”

Since the court is not likely to change its tune any time soon – it is designed to be culturally conservative – our best hope lies in more uprisings of the sort that we saw this week. You can't say that the Old Guard wasn't warned. I predict that the commoners will in time reclaim their public domain. The SOPA/PIPA protests are but early signs of the power of networked culture, which has yet to fully manifest its political potential. 


Update:  Terrific post-mortem on SOPA/PIPA by Yochai Benkler (1/26/12).