Streetwise Professor

January 17, 2012

All Lathered Up About SOPA

Filed under: Uncategorized — The Professor @ 10:19 pm

The internet has been ablaze in recent weeks with dire warnings about The End of the Internet As We Know It due to the seemingly imminent passage of SOPA–the Stop Online Piracy Act.  The threat was so severe that Jimmy Wales, the pretentious, pompous, self-satisfied git who is also the founder of Wikipedia, is shutting down Wikipedia for a day–tomorrow, 18 January, 2012–in protest.  (Sorry all you high schoolers with term papers due on Thursday–I guess you’re SOL.)  This move is being followed by other sites outraged at the legislation.  But not Google–even though it is the main force behind the opposition to SOPA: more on this below.

The stated intent of SOPA is to deal with a real problem: the flagrant theft and sale of intellectual property by large, commercial operations, primarily in Russia and China.  It should also be noted that especially in Russia these enterprises are in a tight nexus with even more unsavory–disgusting, actually–web-based operations, including large-scale hacking-for-profit and child pornography.

SOPA gives the government and the owners of intellectual property the right to obtain injunctions against websites posting and selling stolen content.  It also empowers the USDOJ to obtain court orders requiring US-based ISPs, advertisers, and payment services to cease dealing with infringers.

I have much experience with intellectual property law (as an expert in some large patent litigations), and have read a good deal of the economic literature on the subject (with the Posner-Landes book being a great source).   As a result, I am aware of the difficulties and limitations of IP law.  It is a very difficult task to trade-off between providing protections that reward creators, but which are not overly broad and therefore limit potential for combining or expanding on existing creations to develop new ones.  I also understand that there is a lot of rent seeking involved in IP and IP litigation.  The system is not perfect, by any means.

But the targets of SOPA are definitely malign, and damage legitimate creators: this is not a borderline call.  They currently operate largely outside the reach of the law.  Legislation and enforcement that curtail their activities would be an unmitigated gain.

The question is whether SOPA’s reach would be limited to such obvious, large-scale crooks, or would also ensnare individuals or small websites that inadvertently post copyrighted material.  This is the gravamen of the opposition to SOPA.

Much of this opposition is, to be blunt, hysterical and overwrought.  The opponents argue that SOPA represents the descent of the dark night of fascism over the internet.

I am deeply suspicious of state regulation and intervention, but the over the top screeds of the opponents make me suspicious.  Exaggeration and volume are often used to cover up a lack of substance.  And that appears to be the case here.

So I thought it would be worthwhile to examine SOPA more soberly, using some economics.

The most important aspect of the legislation is that it would reverse the burden of proof.  Presently, a copyright holder has the burden to prove somebody infringed before enjoining the infringer’s operations.  Under SOPA, the government or a copyright holder could go to court asking for an injunction, and the alleged infringer would have the burden to prove it did not infringe.

In most US legal actions, the moving party has the burden, so SOPA is somewhat unusual in that it reverses that.  Is that exception to the rule justified?

The burden of proof is important because information is limited, and any judicial procedure is subject to error: burden wouldn’t matter if information were costless and judges infallible.  But it does matter when errors are possible: burden affects the likelihood of errors, and the type of errors, in a legal proceeding.

In this context, there are two kinds of mistakes: (1) a false positive, where a legit website that does not infringe is cut off by ISPs, payment services, etc., and (2) a false negative, where a large-scale thief is allowed to continue to operate.

Putting the burden on the moving party (the copyright holder) presumes that the costs of false negatives are lower than the costs of false positives.  This makes sense in criminal cases, for instance.  The state’s interest in a conviction is the deterrent effect, which is likely to be small for any given case.  The individual defendant’s interest is his or her freedom or perhaps life.  Here the asymmetry between the cost of errors makes it efficient to err on the side of letting the guilty go free.  The benefit to the state of letting a single criminal go free is small, but the cost to an innocent person from incarceration or death is large.

But that asymmetry does not hold in all instances.  It is quite likely untrue in this instance.  Sometimes the asymmetry cuts the other way.  A large-scale infringer can impose huge losses on legitimate copyright holders.  Indeed, these losses are likely far larger than the profits of legitimate website operators: in a competitive industry (the legal resale sale of copyrighted material) these profits are close to zero, and customers are typically not harmed when one site is shut down because there are alternative legitimate sources of content.  Thus, the presumption in favor of letting the potential infringer walk does not necessarily hold.  Indeed, the asymmetry in this instance suggests that it is efficient to shift the burden because the losses from false negatives are larger than the losses from false positives.

Moreover, the burden should depend on the cost of producing information.  The system should impose a greater burden on the party with the lower cost of providing information that would allow the trier-of-fact to make a correct judgment.

A legitimate commercial site that is paying the copyright holder should have no problem proving that.  Show records of payments received for content sold, and records of payments made to copyright holders.  All kinds of businesses do that every day.  End of story.  At worst, SOPA imposes a burden to keep good records and be punctilious about paying royalties.  Which is kind of the point.

The fears that small-time, perhaps inadvertent, infringers will be targeted are overblown.  The benefit to cracking down on such an infringer are small, and the cost of obtaining an injunction are probably not that much higher than would be involved in going after a big-time Russian or Chinese pirate site, meaning that copyright holders have a strong incentive to concentrate their efforts on the big infringers, and let the small fry swim away.  And even if economics don’t make it unattractive for a content owner to pursue a small-time infringer, the clear legislative intent to attack large-scale commercial infringement by major foreign operators will constrain judges.  It would likely take some time for the precedents to be established, but eventually it is likely that SOPA enforcement would have very few false positive errors.

But that is likely all academic–figuratively, not literally, in the sense that the previous analysis was academic.  Obama has hinted that he opposes SOPA.  The White House blog had a post over the weekend stating that the administration opposes legislation that “reduces freedom of expression” or harms “the dynamic, innovative global Internet.”  This is widely interpreted as a White House whistle calling off the SOPA dogs.   Although it has broad support in Congress, its passage is now problematic.  (Note the typical Obamaesque voting present slipperiness here.  As with the Keystone XL Pipeline, he doesn’t have the political or moral courage to kill something he doesn’t like forthrightly and honestly, instead strangling it stealthily while attempting to leave no fingerprints behind.)

And why oh why did he do that?  One can imagine the angst this caused him, for this issue pits Obama’s and the Democrat’s biggest money constituents against one another: big media (“Hollywood”) on the one hand, and Silicon Valley, on the other: SoCal vs. NoCal.  And by Silicon Valley/NoCal, I mean primarily Google.  This is a Dem Donor Civil War.

Google has been fiercely opposed to SOPA.  No surprise there.  Lowering the price of content raises the demand for the services of those who connect users to content.  Google is the most important presence in the connecting business.  Google need not engage in piracy directly to profit from it.  Moreover, Google bridles at incurring costs to enforce the property rights of others.  Hence its fervent opposition.

And hence Obama’s opposition to SOPA.  As the net neutrality debate demonstrates, when Google says “jump,” Obama responds: “how high?”

And like its support for net neutrality, Google’s strident opposition to SOPA illustrates that its true credo is definitely not “don’t be evil.”  Instead, it is: “what is mine is mine, and so is what is yours.”  Google defends its asserted intellectual property quite aggressively, thank you: see its record in patent litigation, and its wars against search engine optimizers.  But it shows no such respect for the property of content owners (in the case of SOPA) or the owners of networks, cable companies, etc. (Net Neutrality).  It benefits when content is pirated, increasing the derived demand for it as an entity that connects content with users.  It benefits when the terms on which the owners of the networks–another element in the chain connecting content with users–can provide their services are limited (as is the case with net neutrality, which is effectively a form of price control that transfers the property of network owners to network users, and suppliers of services complementary to these networks.)

So before you fall for the histrionics over SOPA and the End of the Internet As We Know It, consider the possibility–the likelihood, actually–that you are being played by a company with the most Orwellian credo ever.  Do you want to be a chump for Google, which would be pretty ironic given the heavy anti-corporate rhetoric of many of the SOPA boxers?  Fall for the histrionics surrounding SOPA, and you will be.

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  1. 1. Why are you saying so much about the burden of proof on digital content? There isn’t the burden you imagine. Already Youtube blocks your videos and sends you notices if you use someone’s copyrighted video song in your machinima. It’s automatic and instant because the digital form that the music track takes is easily spotted as identical when it is copied. For Germany, your video page on Youtube then is blocked and you are delivered a notice. I’ve tested how this works several times. So there is ALREADY blocking and notification and has to be, given all of Google’s lawsuits from Viacom and such, and has to be, given their own TOS. And this all goes on under SOPA.

    But here’s the kicker. Nothing happens. Blocks in Germany, notices to me on email, but my video is not taken down, even though a machine instantly could tell, and 100 percent correctly, that it was some rock star’s song that I had no right to, because it’s a commercial popular song. This is a huge percentage of the use cases of all this, and Google knows that. So it could be blocking my video or simply removing it. Indeed, if I had just copied that rock star’s video per se, and not “mashed it up”, they’d immediately remove it from my “favourites”. Try favouriting some obvious copyrighted material to save on your channel? It will be gone by morning or in the next weeks.

    But my mashup gets to stay because Google pretends that it *might* be some kind of “unique user creation”. To encourage traffic and ad clicking, they let people do that. The mashup might be one minute of them talking and the rest the copyrighted material. Then it isn’t taken down. It should be. This is not about small little scholarly or niche fan sites with a mixture of original and infringing material. This is the Google giant Youtube with stuff from the top artists, swiped.

    2. That gets to my next question. You don’t mention where Google’s real revenue is in all this — the ads. They hijack the content, they let all the kiddies make their videos, they have ad programs with them or with other ad buyers, and they get ad revenues while droves of people come on and look at that hijacked content. So they “borrow” content, make money off it, then make people chase them to get their revenue-making content back in their sole power again.

    3. Do read the law, you are a professor. There are enough remedies and definitions and such to prevent the misfires and false fires.

    Comment by Catherine A. Fitzpatrick — January 17, 2012 @ 10:31 pm

  2. Sorry, all this goes on EVEN WITHOUT SOPA, and once SOPA codifies the fighting of piracy under law, it makes the endless chasing of individual cases start to go away as it forces Google then to have to license content.

    Comment by Catherine A. Fitzpatrick — January 17, 2012 @ 10:32 pm

  3. “the case with net neutrality, which is effectively a form of price control that transfers the property of network owners to network users, and suppliers of services complementary to these networks.)”

    Well, exactly. And then who pays? The government, or the Googlians actually expect the telecoms will go on paying even though they get less and less out of it.

    Comment by Catherine A. Fitzpatrick — January 17, 2012 @ 10:35 pm

  4. Catherine–I don’t think we disagree.

    The post is already long, so I didn’t go into an even longer disquisition about exactly how Google makes its money: that’s a detail. For the purpose of the post, it sufficed to say that Google makes money from piracy because it is in the business of connecting users and content. Free (i.e., pirated) content gives it the ability to make money by providing it. The mechanism (ads) isn’t relevant to my point. The point is that Google makes a lot of money indirectly because content is available for free. It makes it through ads. Fine.

    I also make the point that “it is likely that SOPA enforcement would have very few false positive errors” in large part because of the explicit intent to target big time infringers–a point I’ve seen you make, btw. That is, it “prevent[s] misfires and false fires.” That’s exactly what “few false positive[s]” means. Again–we agree, so what’s the problem? That I didn’t say it exactly the way you would?

    I go on about burden of proof because that’s an important part of SOPA, and what has been the target of a lot of the hysterical criticism.

    We agree that SOPA hysteria is just that. Our arguments and analyses are complementary, and in no way contradictory. Take your allies where you find them, and as you find them.

    The ProfessorComment by The Professor — January 17, 2012 @ 10:48 pm

  5. Obama dropping SOPA?

    Comment by So? — January 17, 2012 @ 11:21 pm

  6. @So?-In typically Obamaesque fashion.

    The ProfessorComment by The Professor — January 17, 2012 @ 11:23 pm

  7. […] The end of the internet as we know […]

    Pingback by FT Alphaville » Further reading — January 18, 2012 @ 2:20 am

  8. I don’t worry about finding allies. I’m more interested in thinking and coming to understanding about the issues.

    Perhaps you aren’t interested in finding the best intellectual arguments to attract supporters of these ideas. By talking more wonkily about Goggle “connecting content and people” (it sounds like a tech corporate slogan), you aren’t getting at the psychology people have of the ads. People need to understand that the hijacked content they look at on Youtube, with the interruptive and annoying ad some X percent of them click on, is the business model and they are submitting to the annoyance and clicking like morons and keeping the whole Soviet system going (“we pretend to work, they pretend to pay us”).

    I emphasize the *ads* because I think people can see not just the *service* of Google then — which they perceive as free and available like a utility — search — but the revenue-making hijacking the content and selling the ads. The ads are in your face; the ads are how Google is making money off *you* and annoying *you*. In time, I believe this entire interruptive ad model and hijacking content model will end. It will end not only because customers’ annoyance will rise — it is totally out of hand now how much the ads interrupt in increasingly outrageous ways all over — it will end because licensing models and wallet models will start to prevail. But we do need an anti-pirate regime to establish right from wrong in getting there.

    The reason I hammer on the burden of proof issue is that it sounds to me like you’re using your understanding of the possible danger of the burden of proof being too heavy to justify opposing SOPA. Your position isn’t clear. Are you opposing SOPA? Because I believe that SOPA, whatever its problems (and I don’t think it has the engineering problems the hysterics do) should be supported not only on its own literal terms but as a bulwark of organic law against the unruly code-as-law Internet.

    Actually, the burden of proof isn’t what bothers most of the critics because they don’to even think in legal terms or even see that as a possible check against abuses of SOPA. They just think any site can be shut down over any little teen’s blog and shriek about it. I think it’s more useful to go through the narrow definition of the law’s scope and also its remedies.

    Comment by Catherine A. Fitzpatrick — January 18, 2012 @ 2:48 am

  9. Catherine–am I opposing SOPA? Are you kidding? The whole point of the post is that the opposition to SOPA is hysterical and overwrought and baseless, and that it addresses real problem. The implication of that is clear. Re BOP the “think any site can be shut down over any little teen’s blog” fear is all about burden of proof.

    Re best intellectual arguments–some things are persuasive to some, others to others. You obviously have a major issue with ads. Fine. They bug me too. But I am an economist, and for the purpose of my post all I need to demonstrate is that Google profits from piracy. You focus on the means by which it does–ads. But that doesn’t get at the fundamental economic issue of why piracy can make advertising so profitable. I presented the economics. You may find it wonkish, but it’s the correct economics. That provides a more fundamental insight as to why Google has such a big stake in this.

    The ProfessorComment by The Professor — January 18, 2012 @ 6:13 am

  10. but the revenue-making hijacking the content and selling the ads. The ads are in your face; the ads are how Google is making money off *you* and annoying *you*.

    As Tim Worstall is fond of pointing out: when something on the internet is free, YOU are the product being sold.

    Comment by Tim Newman — January 18, 2012 @ 6:49 am

  11. I think that the worry is that because the burden of proof is moved to the person posting the content, it makes it possible, as an unintended consequence, for companies to use it to silence legitimate critics or to shut down rivals.

    Whilst this is not the intention of the law I see that it is perfectly plausible for particularly aggressive companies to use it against small organisations that they see as an annoyance, who could not afford to defend an action. For example, imagine an environmental group were highlighting that a particular company was poluting an area and in the report used the company’s logo. It seems that under the SOPA law, the company could have the site shut down for copyright infringement.

    Hackers and people who want to download illegal content will probably find ways around the law and the people who are currently profiting will spend a lot of money to find an easy way to do it. Much as I hate illegal downloading and want to protect IP, it seems to be a resilient practice.

    SOPA seems to be a solution that throws the baby out with the bathwater, but without getting rid of all the water.

    Comment by DVWilliams — January 18, 2012 @ 7:47 am

  12. Side note —

    I have never heard the criminal law, burden of proof/letting one guilty man go to avoid mistakes principle put quite that way.

    A conjunction of law and economics in the criminal law sphere.

    Very, very, very interesting.

    Comment by elmer — January 18, 2012 @ 9:01 am

  13. Thanks, Elmer. I am a University of Chicago guy. UC is the birthplace of the law and economics movement. UC scholars in the econ department, B-school, and law school have long applied economic analysis to many legal principles and concepts, including procedural ones. Some traditionalists rebel at this, but it has been very influential. Richard Posner was one the pioneers, with his Economic Analysis of the Law, and there has been much subsequent research applying economic analysis to virtually every branch of the law.

    There’s a 3 volume New Palgrave Dictionary of Economics and the Law which provides a good summary of the research as of the mid-1990s. A mere $1200 🙂 but most law libraries have it. It includes an entry by the Young SWP 🙂

    The ProfessorComment by The Professor — January 18, 2012 @ 9:38 am

  14. […] Wall Street Journal, they walked head on into the debate over SOPA. They made some good points. At Streetwise Professor, Craig made some good points on SOPA as […]

    Pingback by Big Media Against SOPA | Points and Figures — January 18, 2012 @ 9:59 am

  15. I for one like the “Wild West” feel of the Internet as it current exists.

    This new legislation essentially – if interpreted liberally, as it no doubt will be – gives the Man the ability to shut down any site the 1% elites / the Government want to.

    The ur-control freaks who support SOPA can shove it up their ass. And it appears more and more of them are getting the message, to the delight of real fans of liberty everywhere.

    Comment by Sublime Oblivion — January 18, 2012 @ 10:15 am

  16. Example:

    * The Man takes a disliking to SWP’s site. (Have no idea why he should, as SWP supports the Man on 99% of the issues, but let’s assume for the moment that he does).

    * An anonymous commentator posts a link to pirated music / software / whatever, or even hacks into the WordPress software and leaves it there. (This site is hacked, btw, ads for Viagra sometimes appear at the bottom of the comments section within the body of the website).

    * The Man shuts SWP down forever.

    * Booted offline into the post-NDAA offline reality, SWP forlornly riffs off Martin Niemöller to his real world comrades.

    Comment by Sublime Oblivion — January 18, 2012 @ 10:22 am

  17. “99% of the issues”- because except for a few ultimately irrelevant things, such as TSA thugs or online gambling freedom, SWP – despite the dissident streetwise rocker image he tries to project – otherwise shares the collectivist / 1% agenda.

    Comment by Sublime Oblivion — January 18, 2012 @ 10:26 am

  18. SWP, I am an avid reader (though rare commenter) of your blog. I agree most things you have written about and I always appreciate your insights, along with many of those who contribute in the comments. And I thank you for that.

    However this time I disagree. The burden of proof on the defendant? Where is the presumption of innocence? I know I just sounded like “hysterical and overwrought”, but the reality is that “The fears that small-time, perhaps inadvertent, infringers will be targeted” is not overblown, IMO.

    I am not an economist, but my life experience just shows me otherwise. When I was a restaurant owner, ASCAP/BMI rolled though my town, going on a spree of handing out demands for payments for those among us who were not paying royalty fees for playing CDs or used commercial FM radio. I used a (licensed) jukebox so I luckily escaped those troubles. Also, some of us might remember that when those recordable CD players came out. To buy the discs meant that we had to pay $1.00 extra per disc – payable to the record companies – for permission to copy a vinyl record or cassette from our collection. I think it’s pretty easy to find those horror stories of a big entertainment organization slapping some kid or old person with a huge lawsuit. I think those companies won’t mind breaking a few eggs to recover lost profits.

    I currently live in provincial Russia, hence the reason for my being a reader of yours. I live in a world where little is actually licensed, whether it’s DVDs, CDs or software. My concern about all of this is that the power will not be used as you described, but will be a license to kill, for those companies who might have been damaged by piracy. I have not seen any reason to believe otherwise.

    There has to be a better way to stop piracy.

    Comment by Blank Frank — January 18, 2012 @ 11:34 am

  19. Blank Frank–Thanks for your kind words, and I don’t mind disagreement.

    My point is that the presumption of innocence makes sense in a lot of circumstances–but not every one. (I should note that the presumption of innocence in criminal cases is an Anglo-Saxon convention, and is not part of Civil Code/Napoleonic Code systems, where the reverse is true.) Again, presumption/burden is related to errors, the cost of different types of errors, and the cost of producing information to reduce the likelihood of errors. In most criminal cases, these factors strongly favor the presumption of innocence.

    But these factors are different where large-scale piracy of IP is concerned.

    Your experience obviously ante-dated SOPA, so it’s not completely on-point. SOPA is aimed at large scale foreign websites that sell pirated material. As I note in the post, the concern is that SOPA will also be used to attack others–including, pace S/O, SWP.

    Like anything, one has to be consider the balance of harms. One alternative is to do nothing–in which case large scale piracy will continue. The other is to implement something like SOPA, which will reduce large scale piracy, but at the increased risk of punishing the innocent or small scale infringers who are ostensibly not targeted by the bill.

    I tend to think that the latter fears are overblown. Many of these fears are predicated on the assumption that judges will reflexively side with the government or the copyright holder: courts are notably absent in S/O’s IP dystopia. In Russia, I’d say that’s definitely realistic. In the US, not nearly so much. It will take some time to sort out, but all those who are so vehement in their objections to this possibility will inevitably have the opportunity to make their case not just in circuit courts, but eventually in appeals courts and the Supreme Court, which are likely to take the explicit intent of the bill into account, and who are not, in any event, tools of The Man. (BTW, S/O: WTF resurrected the term “The Man.” Geez. Boomer phrase used by Boomer spawn. It was retired years ago–with good reason. Now I just snicker when I hear it.)

    I’d also suggest that your description of provincial Russia as a place where everything is pirated is hardly calculated to justify abstaining from going after Russian pirates. It rather seems to support the case that this is a serious problem.

    To conclude, I acknowledge the potential concerns with SOPA–the possibility for a false positive. But the trade-offs and the involvement of an independent judiciary working with a statute with clear intent make me far more optimistic that SOPA will appropriately balance the interests of copyright holders and non-pirates.

    Those, like S/O, who favor a “Wild West” approach (a mischaracterization of the Wild West, as much modern history and economics makes clear) basically place no weight on the interests of the copyright holder. Therefore, there is no trade-off, and the possibility of a false positive is determinative.

    I don’t take that view. Hence the disagreement.

    The ProfessorComment by The Professor — January 18, 2012 @ 12:15 pm

  20. SWP, your agile dissection of Finance and Russia do not carry over into the domain of Copyright. You mention there is plenty of rent-seeking in IP law, but you do not carefully consider balance of powers between the mafia laywers at the RIAA and MPAA, and pirate sites in Russia and China. Have you noticed that Copyright has been extended indefinitely?, so anything created after 1923 will never enter the public domain- the Constitution clearly states a “limited monopoly” for IP? Have you noticed that YouTube already bans any mashup that a teenager creates with a popular song or image?- “fair use” is a joke. Creative content is being censored today, and the old-media lawyers already have the upper-hand with the law. You keenly understand how a black-market thrives when a government prohibits voluntary transactions (think Russia and Dodd-Frank), and you should be lathered up in protest of SOPA. SOPA will only increase the opportunity for pirates in china and russia, and deny creative expression for teenagers worldwide.

    Comment by scott — January 18, 2012 @ 1:52 pm

  21. SWP we always knew you would come down on the side of The Man. If Zerohedge ‘happens’ to be shut down for a few days to prove that it didn’t violate copyright while breaking news on the CME, so much the better. And if certain Russian or Chinese sites are already trafficking in illegal content, they can be blocked or shut down in other ways.

    The irony is that illegal software is the most common pretext, according to various activists, for shutting down Russian NGOs. But we all know since you believe the Natural State can’t happen here (to paraphrase Upton Sinclair), we need not fear pretexts for it stifling dissent, no? The shoe will never be on the other foot. We will never have to worry about Chinese missile defense bases in Venezuela. Or will we?

    When even NSA-Gov-oogle thinks you’ve gone too far, you know there’s some dissent within the Establishment.

    Comment by Mr. X — January 18, 2012 @ 3:33 pm

  22. “Now I just snicker when I hear it.” Cuz the Man foots the bill for your extensive traveling. You are chained to the Almighty Status Quo no matter how much you ocassionally posture. You’re as fake as Rick Perry’s bill to stop the TSA groping in Texas which his buddy Dewhurst killed behind the scenes at Uncle Sam’s request, by threatening AN ACT OF WAR (blockade) to do so.

    Comment by Mr. X — January 18, 2012 @ 3:36 pm

  23. And Catherine Fitz, I have a quote for you:

    “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”

    You know of what I speak.

    Comment by Mr. X — January 18, 2012 @ 3:39 pm

  24. Scott–Thanks for the props, and again I don’t mind reasoned disagreement. In reply: You are mixing two issues. Your main issue relates to what the scope of copyright should be. SOPA is about how that right, whatever its scope, can be enforced against foreign websites and their operators.

    My statement, which you alluded to, about the complexities of IP law were meant precisely to say that I wasn’t taking a stand on the scope of the right. Maybe someday I’ll turn to that issue.

    But that’s tangential to SOPA per se, so it’s an argument for another day.

    Mr. X–I suggest you wipe off your monitor. Note what I said to Scott about “reasoned disagreement.” Hint: you don’t qualify.

    And it is too rich for a guy who conceals his identity to call somebody else a “fake.”

    I am intrigued, though, why you believe SOPA actually would facilitate piracy in Russia and China.

    The ProfessorComment by The Professor — January 18, 2012 @ 3:43 pm

  25. How’s it feel to be in the same company as Mr. Frank & Dodd Pirrong? Well hell you and George Soros have been agreeing on Russia for years, so what else is new? The only consistent thread is favoring the Establishment.

    Yes I conceal my identity. With damn good reason. I don’t trust you and I don’t trust your spooky and occasionally thuggish threatening ‘fans’ (vorobey). Congrats to Catherine Fitz who’s suddenly decided to take off her Darth Vader mask. Well good for , there’s already photos and YouTube videos of her all over the web.

    I hope your site does get shut down for alleged ‘piracy’, and your buddies at the CME get their pants sued off.

    Comment by Mr. X — January 18, 2012 @ 3:48 pm

  26. You’re so incredibly smug it would only take the Natural State making it your turn (ala Niemoller) before you wake up.

    Comment by Mr. X — January 18, 2012 @ 3:49 pm

  27. And here’s a message from the guy you hate 1,000,000 times more than Sen. Dodd on this unconstitutional act:

    Comment by Mr. X — January 18, 2012 @ 3:57 pm

  28. The reason I didn’t mention courts is that:

    (1) Many of the NGO’s and media sites that can be potentially affected in “dystopian” ways by this legislation do not have funds lying around to hire lawyers to take it to court, let alone engage in appeals and so forth.

    (2) There can be punishment and compensation if there is concrete proof of misrepresentation on the part of the content rights holder, but this is exceedingly hard to find.

    Comment by Sublime Oblivion — January 18, 2012 @ 4:12 pm

  29. Sorry the video I linked to was about the National Defense Authorization Act, another odious piece of legislation that SWP thinks was overhyped.

    Real Jacksonian patriots, of course, have President Barack Obama sign their legislation in the dead of New Year’s when no one is covering it, clearly.

    Comment by Mr. X — January 18, 2012 @ 4:26 pm

  30. Open forums can be costly exercise– I will ignore Mr. X’s dialogue. SWP you are correct that I am mixing issues 1) the legitimacy of copyright and 2) the current SOPA law to shut down foreign transgressors. I am lathered up abut SOPA because of number 1, and you are correct that the enforcement mechanism of SOPA is not draconian. DMCA was an even worse piece of legislation. However the laws are already tilted in favor of Disney, Comcast and Fox, and I view SOPA as another nail in the coffin for innovation and creative expression. On another day, I would like to read your reasoned opinion about the economic value of copyright (1) , and the current cost of being extended to 100 years.

    I want to develop my other comment a bit: that SOPA will actually create more opportunity for pirates and black markets. Prohibition in 1917 is an easy example of how a statute created a black market of moonshiners and then later an unlikely alliance with Righteous Christians to keep the law in place. Same is true for all drug policy today. Creating a statue to prohibit an “allegedly illicit” activity only sends it underground, and produces higher profit for drug lords or IP pirates in china and russia, than would be available if it was not illicit. I view Dodd-Frank rules in a similar vein, it creates enormous profits for larger dealers and SEFs that can negotiate its byzantine pathways, and squelches true innovation and transparency in financial markets by smaller companies who cannot negotiate the pathways of power in washington/nyc/chicago.

    The web will continue to exist with SOPA or without. The technological arms race almost guarantees this. However, with SOPA the opportunity for rent-seeking pirates is increased, not diminished, and the web becomes an increasingly expensive place to operate. Very likely with SOPA, the SWP blog will have to pay an annual license fee to keep its DNS from being blocked. Probably not an issue for you to pay a $100 annual fee, but is prohibitive for teenager or protester in syria today.

    Comment by scott — January 18, 2012 @ 4:34 pm

  31. How exactly are pirates “rent-seeking” when you – by definition – don’t have to pay them for content?

    Comment by Sublime Oblivion — January 18, 2012 @ 4:44 pm

  32. I suggest your try watching Monday Night Football streaming over the web. Pirates have all manner of monetization schemes, from simple pornography pushing to complex phishing and affiliate marketing with Google Adwords. There are millions who want to watch the game, and it is legally broadcast outside the US, so essentially pirates can obtain it cheaply, then “sell” it to you through unscrupulous means. With SOPA the Pirates can charge a higher rent than they could otherwise (maybe an explicit charge for VPN proxy to an international location- rather an image of sexy woman) and collect more money for their activity. Note, ABC/ESPN still does not collect anything for content.

    Comment by scott — January 18, 2012 @ 5:01 pm

  33. Scott, with all due respect, you are unaware of SWP’s history of toadying up to The Man/Establishmentarianism:

    1) He said I was whacko for saying that NDAA applied to citizens, and posted one section of the law, while ignoring the videos of its own sponsors in the U.S. Senate (Lindsey Graham, Joe Lieberman, John McCain and then later the Senator from Michigan Carl Levin) claiming that they clearly meant for it to apply to U.S. citizens. His statement that everyone is hyperventilating about SOPA, despite his ignorance about how the Internet works compared to the senior Google execs, and his ignorance of constitutional law compared to Yale grad Stewart Rhodes, is par for the course. You notice I don’t get into it with SWP about his narrow field of expertise, but he seems to know better than all those alarmist, pro-Ron Paul dolts like Rhodes how the NDAA will actually be applied, and as with SOPA has a seemingly bottomless contempt for Russia paired with an alarming naivete about the corruption and persistent tendency of the Federal Courts to uphold unconstitutional laws and procedures.

    2) SWP has a bit of a grudge against Zerohedge, and has repeatedly accused them of being a front for some foreign intel agency. He got caught in a misstatement, saying they failed to cover the protests against Putin in Russia when they did, and makes dark conspiracy theories about the (unconfirmed) alleged Bulgarian ex-broker behind Zerohedge being the son of a Bulgarian KGB officer. I gave SWP the benefit of the doubt that he just neglected the five second Google search it would have taken to find three ZH posts on the Russia protests within a fornight of his post.

    Besides envying the fact that ZH is now easily in the top 1,000 of all daily visited U.S. sites (and hence gets about 500,000 times as much daily traffic as his own page) I suspect it has to do with Zerohedge accusing the CME’s management of criminal negligence. ZH and the other ‘counter-Establishment’ forums it links to have repeatedly accused senior CME management of criminal negligence in the MF Global heist and in thus far apparently not being much help in actually returning funds to customers like Gerald Celente. Presumably though since Celente is a regular guest on the Russia Today channel SWP despises he deserved to have his nearly seven figure cash position stolen. Or hell, certain commenters like vorobey have been known to say subversives who appear on Russian TV should be locked up.

    He says my tendency is just to fire away without any standards of evidence, but has been mostly silent about why it’s taking so long and why Mr. Corzine has not been given the perp walk like the Captain of that wrecked Italian cruise liner.

    3) At least in the case of Fast and Furious which was a blatantly criminal operation, upon repeated prodding by yours truly, the Texan Pirrong finally said maybe Eric Holder has a nasty kryshe (roof) above him that allows him to stiff arm Congressional inquiries into perjury with impunity. And perhaps it’s simply because Holder and his GOP critics know F&F started under Bush.

    Comment by Mr. X — January 18, 2012 @ 5:14 pm

  34. Oh and to top it off, SWP once made a throwaway comment about how he’d rather keep seeing the U.S. taxpayer bribe the Pakistanis to keep the Khyber Pass open to U.S. supply lines to Afghanistan then trust the hated Rooskies. No I’m not making this up. So the Russia derangement combined with a purported libertarian’s touching and seemingly endless trust in the U.S. government when the chips are down knows few limits here.

    Comment by Mr. X — January 18, 2012 @ 5:16 pm

  35. Scott–Still think there’s the same issue. What would be analogous to Prohibition would be the copyright law itself. And I think the analogy is poor: prohibiting commerce in and consumption of certain substances is different from outlawing theft. Which brings us back again to how copyright defines what property is.

    That is, SOPA is about enforcement of a right. You have problems with the way the right is defined itself.

    Which suggests a grand bargain. A compromise in which the right is circumscribed in exchange for more robust enforcement.

    Re your Syria point–that I don’t get. It’s the Syrian government that is shutting down the teenager’s website–or shooting him. It’s not about enforcement of American copyrights.

    Mr. X & S/O: Question for you. I’m genuinely curious: Is Google The Man?

    The ProfessorComment by The Professor — January 18, 2012 @ 5:17 pm

  36. “Mr. X & S/O: Question for you. I’m genuinely curious: Is Google The Man?” In most cases, yes. But in this case, no. I’ll take what allies I can get. You notice that as Infowars puts it once these bills finally are debated widely the sponsors on both sides of the aisle scatter like cockroaches after someone turns a light on at 2 AM. Unfortunately the NDAA was ramrodded through during the holidays when fewer people were paying attention. Funny how all these bills you think are no big deal have to be passed that way…

    Comment by Mr. X — January 18, 2012 @ 5:26 pm

  37. SWP, Prohibition is poor as an analogue for the reasons you mention, but is a good example as a primer for how trade moves to the black-market when activity is made illicit or more difficult. That is why I brought up Dodd-Frank after prohibition. For example, Dodd-Frank does not outright prohibit OTC derivative trading, but creates “licensed pathways” or SEFs for OTC trading to occur. Economic rent will now go to those facilities that can execute a trade with a license from the CFTC rather that just letting me execute a trade with counterparty I already have a relationship with.

    Is OTC derivative trading a “right”? like copyright is a “right”? Dodd-Frank is effectively taking away by ability to buy (rather than sell for copyright owner) a commodity from my friend or bi-laterally from a counter party. An equivalent SOPA enforcement in Dodd-Frank would be the prohibition for me to buy my commodity on the Shanghai futures exchange (Obama already demonizes them). At this point all the prevents me as an American from purchasing Chinese copper is a xenophobic CFTC regulator or judge. The enforcement of my right (or negative right in the form of the Enron Exemption) can transform the legitimacy of the right itself.

    Apparently, Dodd-Frank it is for my own good, and not for benefit of incumbents like CME or ICE. Same with SOPA.

    In terms of Syria, it was an off-handed comment that supports my bias of enabling free expression, and providing internet tools for folks living in oppressive regimes (Russians take notice). But the more I think about it, defining international barriers for the web and casting foreign pirates as villians rather than all pirates (foreign & domestic) is as idiotic as imposing nationalistic capital controls. Capital and web technology will move much faster than any nation can legislate against it. Switzerland, Singapore and Dubai will be the biggest gainer with Dodd-Frank, and SOPA will improve the profitability of illicit content providers in China and Russia. The internet genie is out of the bottle, and my poor Syrian will have access to information- either free or very expensively through a VPN satellite connection. The enforcement of SOPA will not prevent piracy, it will simply drive more rent to the pirates and their elaborate delivery methods.

    Comment by scott — January 18, 2012 @ 6:35 pm

  38. Scott, you’ll be pleased to know that neither SWP, nor Robert Amsterdam (Khodorkovsky), nor Yabloko nor even the pro-Caucasian terrorist site KavkazCenter is blocked in Moscow (perhaps the latter is kept open for the same reason the Brits keep open the Finsbury Park Mosque, to track who logs in and out).

    And you know damn well if the shoe were on the other foot and PUTIN were proposing SOPA’s Russian equivalent…ah nevermind.

    Comment by Mr. X — January 18, 2012 @ 6:54 pm

  39. Good arguments.

    Very clearly, Govt-made ’IP’ rights and the enforcement of them have become a means by which crony capitalists loot and by which the US Govt extends its domestic and international

    Thus, my own opposition to SOPA.

    Comment by TokyoTom — January 19, 2012 @ 1:50 am

  40. I am interested in your opinion on two points

    1) A technical argument against SOPA is that DNS blocking will make access to infringing sites more difficult but not block it (sites will still be reachable via their IP address). This would raise costs of pirating depending on the consumer’s skills but may not make them prohibitive for the Internet-Generation.

    2) A competition argument against SOPA is that the reversal of the burden of proof can be used in certain Internet markets (social media) as instrument of raising rivals costs and thus deter entry. I.e. an incumbent could file an infringement charge against an entrant (some tech startup). The entrant would face the cost of the burden of proof (which may even be higher for a start-up at the bottom of the legal learning curve) plus the uncertainty of the legal trial. These additional costs will deter the marginal entrant.

    Comment by Fabian — January 19, 2012 @ 6:28 am

  41. Mr.X, the Russian government does not go for permanently blocking foreign websites, they just go for online harassment, or DDOS attacks, like those that were directed at Georgian civilian and government websites in the weeks prior to the Russian invasion in 2008, or those against Estonia.

    With their own troublesome journalists, well the Russian government, particularly your hero Putin, just tend to have them beaten until they are permanently crippled, or kill them.

    Of course you support the illegal behavior of the Russian state…..

    Comment by Andrew — January 19, 2012 @ 7:26 am

  42. @Andrew–You might find this article about Koobface of particular interest. It’s a long but worthwhile read for everybody, IMO.

    The ProfessorComment by The Professor — January 19, 2012 @ 12:41 pm

  43. Clay Shirky thinks the flip-flop on the burden of proof is the real threat of SOPA.

    Comment by scott — January 19, 2012 @ 2:08 pm

  44. Andy Dzughashvili, we’re done talking about that. Suffice to say, I think the Kremlin had the Tie Eater’s phone tapped if not had a man on his staff in the weeks leading up to the ill-fated, doomed (and Darth Cheney-approved?) assault on Tskinval.

    Comment by Mr. X — January 19, 2012 @ 6:04 pm

  45. This is the mindset of the control freaks who support SOPA.

    What it will all lead to is basically the fracturing of the Internet as we today know it: Into a heavily censored US national Internet, together with other national Internets (subject to varying degrees of censorship) and bootleg international darknets.

    Comment by Sublime Oblivion — January 19, 2012 @ 8:27 pm

  46. Even without SOPA, copyright owners ought to be concentrating their efforts against the big Chinese (and Russian?) pirates, but instead, we’ve got the RIAA and MPAA (and until recently, Righthaven) using sledgehammers on individuals.

    I suspect that if SOPA-like interference with the official DNS root starts happening, alternate DNS roots will become popular, instead of the trivialities they are now.

    Comment by Sam P — January 19, 2012 @ 9:42 pm

  47. Mr. X, it is Tskhinvali, not Tskinval.

    Also moron X, you forget the continual attacks on Georgian villages by Russian backed separatists that preceded the Georgian retaliation.

    But we know you support Russian led ethnic cleansing so your opinions are not surprising.

    Comment by Andrew — January 20, 2012 @ 10:21 am

  48. Sidestepping the discussion, the SWP and others might enjoy this Cato panel on SOPA/PIPA/OPEN:

    It is transparently partial, but I don’t think that is necessarily a bad thing.

    Comment by ThomasL — January 20, 2012 @ 4:00 pm

  49. “Also moron X, you forget the continual attacks on Georgian villages by Russian backed separatists that preceded the Georgian retaliation.” Yes, much like those massive Polish attacks on Germany in 1939. And where were all those U.S. Marines that were paid with my tax dollars to observe the Ossetian shelling? How come none of them have come forward about what they saw in Georgia before the war started? Curious silence, no?

    And to wrap up the actual PURPOSE of this thread, how does it feel SWP to be opposed by all four remaining GOP presidential contenders, including Mittens Romney? Seems you misjudged which way the wind was blowing today when you decided to stick up for the poor, poor record companies and The Man.

    Comment by Mr. X — January 20, 2012 @ 7:09 pm

  50. Because the US trainers were confined to barracks during the war and did not take part.

    The separatist attacks are listed in the IFFCMG report (which you are obviously unable or unwilling to read)and were documented at the time by observers including the OSCE and media.

    Of course idiots like yourself were to busy watching the olympics build up to notice.

    Comment by Andrew — January 21, 2012 @ 8:19 am

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