by Mike Masnick, techdirt.com
February 8th 2012 8:58 pm
Remember all that talk of how the supporters of SOPA/PIPA were “humbled” by the protests of January 18th, and how they had learned their lessons about trying to push through a bill without actually involving the stakeholders? Remember the talk of how they hoped a new tone could be found in the debate? Yeah. Apparently someone forgot to send that memo to RIAA boss Cary Sherman, who has taken to the pages of the NY Times to lash out at those who fought against SOPA/PIPA, chalking the whole thing up to a massive “misinformation” campaign by Google and Wikipedia. The whole thing is chock full of ridiculous claims, so we might as well go through it bit by bit.
THE digital tsunami that swept over the Capitol last month, forcing Congress to set aside legislation to combat the online piracy of American music, movies, books and other creative works, raised questions about how the democratic process functions in the digital age.
Why yes, it did raise questions about the process by which the RIAA and MPAA write bills to regulate other industries without even letting those the bill would regulate have a seat at the table. It also raised questions about the way the RIAA and MPAA have successfully expanded copyright law in their own favor sixteen times in the last 35 years, by playing the moral panic game over and over again… and keeping any hint of reality out of the debate. What it showed was that the tools of communication finally allow the public speak up and that the users of the internet simply won’t accept the RIAA and MPAA’s version of protectionism and crony capitalism any more. But somehow, I don’t think that’s what Sherman meant…
Policy makers had recognized a constitutional (and economic) imperative to protect American property from theft, to shield consumers from counterfeit products and fraud, and to combat foreign criminals who exploit technology to steal American ingenuity and jobs.
Oh gosh. So much pure crap in a single sentence it’s difficult to know where to start. First of all, copyright is not property. It’s a government granted monopoly privilege over information. That’s very different. Also, it’s not theft when someone infringes… it’s infringement. Using such bogus language has been the way that the RIAA has induced moral panics for years, but part of the point of the protests was that the public simply isn’t buying it any more. Repeating the same tropes over again is just sad.
Next, there is no “constitutional imperative” to pin secondary liability on innocent parties, to massively expand the nature of copyright law and the nature of enforcement. The only constitutional issue is that Congress has the right — but not the requirement, to create copyright and patent law if (and only if) it promotes the progress (of science and the useful arts). That’s got absolutely nothing to do with SOPA and PIPA, and it’s ridiculous and obnoxious to suggest otherwise.
Conflating copyright infringement with counterfeiting, as he does right after that, is a cheap trick that we’ve discussed countless times. Counterfeiting is a very different issue from copyright infringement. If Congress wants to address “shielding consumers from counterfeit products and fraud,” then they should debate a bill that’s narrowly focused on that particular issue. But that’s not what they did here. SOPA and PIPA were much more focused on issues that had nothing whatsoever to do with protecting consumers.
Finally, there is no such thing as “stealing ingenuity or jobs.” Those are things you cannot steal.
The RIAA may have been a master at creating moral panics in the past, but doubling down on the same failed strategy after it’s been exposed is just kind of sad. I know Sherman has been at the RIAA for ages, but it’s time to get a new playbook. The moral panic strategy in which you lie, conflate different issues, and present some massive problem without any evidence is simply not credible any more.
They knew that music sales in the United States are less than half of what they were in 1999, when the file-sharing site Napster emerged, and that direct employment in the industry had fallen by more than half since then, to less than 10,000.
What they might not have known — because the RIAA never wants to admit this — is that the overall music industry is growing, not shrinking. Sure, the dollar value of music sales has shrunk, and perhaps it’s because of file sharing, but the overall music industry — including things like concerts, licensing and publishing — has continued to rise, quite significantly. More importantly, these are the parts of the business where artists actually keep a much larger percentage of the money — meaning that artists are significantly better off today than they were in the past, contrary to what Sherman and the RIAA will tell you.
Furthermore, it seems pretty clear that much of the decrease in music sales has to do with the unbundling of the CD, and the fact that people aren’t forced to buy an $18 CD just to get the one or two songs they want. Overall, music transactions have grown tremendously.
Even more important? The amount of music that is being created has exploded over the last decade. And, in the end, that’s the key point of copyright law. It’s supposed to encourage more creation of new content, and that’s happening at an amazing rate. The RIAA’s real problem is that a significant and growing portion of that is happening entirely outside of the RIAA labels.
Finally, notice the careful use of “direct employment” rather than overall employment. That’s because he’s only talking about those employed by the major record labels — which, at just 10,000, is a tiny blip. I’m actually kind of amazed he’d use this number, since it shows the ridiculousness of the MPAA’s claim of 19 million jobs at stake. They’re not. The RIAA is concerned about just the employment of a very small number of companies who simply refuse to adapt to a changing marketplace. Companies like Google, Facebook, eBay and others have created millions of new jobs over the last decade. And we should be worried about 10,000 jobs from a few giant conglomerates (many of which are owned by foreign companies or investors) because they refuse to adapt? Wow.
Meanwhile, what the data really shows is that those who are actually involved in the creation of entertainment (not just gatekeeper roles like the RIAA) are seeing continued growth — especially among independent artists, who have grown by over 43% in the past decade.
Somehow Sherman left that part out.
They studied the problem in all its dimensions, through multiple hearings.
This is just flat out lying. There were no Congressional hearings on PIPA. At all. There was one hearing on SOPA — in which the deck was completely stacked 5 to 1 in favor of the bill, with the “1” against being Google — and not anyone representing the wider interests of the public, technology or the internet. To say that Congress studied the problem is simply false. In fact, I know this for a fact, because over the past few months I’ve met with dozens of members of Congress in both Houses, discussing these issues, and was told, repeatedly, that they had never seen or heard the basic numbers I was providing (despite the fact that most of them come from the government itself).
While no legislation is perfect, the Protect Intellectual Property Act (or PIPA) was carefully devised, with nearly unanimous bipartisan support in the Senate, and its House counterpart, the Stop Online Piracy Act (or SOPA), was based on existing statutes and Supreme Court precedents. But at the 11th hour, a flood of e-mails and phone calls to Congress stopped the legislation in its tracks. Was this the result of democracy, or demagoguery?
Both PIPA and SOPA may have been “carefully devised,” but they were carefully devised by the MPAA, which handed the final bill to the politicians who introduced them. They were not carefully devised with the public in mind. Separately, the idea that these bills were stopped “at the 11th hour” is again a lie from someone who is hoping that people weren’t paying attention. From the moment the predecessor of these bills, COICA, came out, there was a growing movement of internet users, innovators, legal experts, technologists, entrepreneurs, investors and many, many others speaking out against these bills. This continued to grow and grow as more people learned of the problems of these bills. The idea that this was some magic 11th hour outbreak of interest is historical revisionism.
Misinformation may be a dirty trick, but it works.
And the RIAA and Cary Sherman should know, as they’ve been experts in misinformation for decades, including in their support of SOPA and PIPA, which was very carefully planned out. Was there some misinformation on the other side? Sure, but most of that came from two factors: (1) The fact that the initial version of SOPA was such a massive and complete overreach, that even once the details of that bill were trimmed back, not everyone who had been made angry by the original bill realized this. Yes, it was too bad that not everyone realized what changes Lamar Smith made in December, but it’s pretty ridiculous to claim that was part of a “misinformation campaign.” Most of those claims were based on what the MPAA and RIAA had supported in the original bill and would have loved to have seen in the final. (2) The fact that there were millions upon millions of everyday people who spoke out against the bill. When that happens, some people are going to exaggerate or report false information. But the key arguments were absolutely true.
And, really, the misinformation coming from the other side was different. It wasn’t because of miscommunication, it was the direct and planned out strategy of the MPAA, RIAA and US Chamber of Commerce to directly mislead Congress and the press by presenting information in a manner that was flat out false.
And if we’re going to talk about misinformation campaigns (hey, he brought it up), should we take a look at the campaign by the RIAA to declare MP3 players illegal? Should we talk about their attempt to take away artists’ rights by having a Congressional staffer sneak language into a bill overnight that would eliminate an artist’s right to reclaim copyrights (done by the guy who is now number two at the RIAA and who joined the RIAA just months after doing this). Should we talk about the misinformation campaign against internet users, ISPs and just about anyone who didn’t fall into line with the RIAA’s view of the world concerning the internet?
Consider, for example, the claim that SOPA and PIPA were “censorship,” a loaded and inflammatory term designed to evoke images of crackdowns on pro-democracy Web sites by China or Iran.
No, censorship is the accurate term for what occurs when you shut down protected free speech. And that was the major concern. And it was made by well over 100 legal scholars, including by some of the most respected legal scholars in the country. Even the big legal scholar that the pro-SOPA forces rolled out admitted that SOPA and PIPA would cause protected speech to be censored.
And it seems pretty damn hypocritical of Sherman to go on and on claiming that “censorship” is the wrong word, when he’s the one using “theft” for infringement — a direct falsification, unlike the use of censorship which is the proper word, as made clear by all those legal scholars.
And, yes, comparing it to China and Iran was completely reasonable, because the method put forth by PIPA was identical to the method used to censor the web in those countries. It wasn’t “misinformation.” It was a very accurate concern.
Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal? When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is?
Okay, speaking of misinformation… shutting down a store is one thing. Shutting down a website that involves all sorts of speech is completely different. And the courts have directly discussed this distinction many times. When a shutdown involves speech, different standards are used. Why Sherman would ignore that… well, that just speaks of the “dirty trick” of a misinformation campaign. Should we discuss the case of dajaz1? The website that was completely censored (yes, censored) by being taken down on the RIAA’s say so, despite the fact that the copyright holders and labels were providing that site with the music. Should we talk about how that popular hip hop blog was completely shut down for over a year based on the RIAA’s misinformation? Should we talk about how that site wasn’t give its day in court? Should we talk about how the censorship lasted for over a year and all of the traffic and earnings that site lost out on because of the RIAA’s misinformation? Should we talk about how, after the US government effectively admitted its mistake and gave back the domain (over a year later) without ever filing any charge, the RIAA (rather than apologizing) continued its misinformation campaign by insisting the site was guilty?
Wikipedia, Google and others manufactured controversy by unfairly equating SOPA with censorship. They also argued misleadingly that the bills would have required Web sites to “monitor” what their users upload, conveniently ignoring provisions like the “No Duty to Monitor” section.
More blatant misinformation. The concerns about these bills were raised by millions of internet users — not companies. Google and Wikipedia jumped on board late in the game. Yes, their participation in the January 18th protests helped drive the point home, but they were stragglers in this debate, hardly the ones who “manufactured” anything. The protests were driven very much by people, not companies. Anyone suggesting otherwise has no idea what happened and is either ignorant… or conducting a blatant misinformation campaign.
As for the “no duty to monitor” part — this is another part of the bill that was blatantly dishonest. It included statements about how there was no duty to monitor… but then left open the possibility of liability or compliance costs for not doing enough, or not being proactive. Specifically, it would say things like, internet companies would be required to take “reasonable” steps to block access, but the only way it’s determined what’s “reasonable” is in court. So sites that want to keep themselves out of court might just go all the way to monitoring, just to protect themselves. It’s a sneaky legislative trick — one that Sherman is quite familiar with. Declare that the bill doesn’t require something, but word the rest of the bill in such a way that sites feel compelled to do it anyway.
The hyperbolic mistruths, presented on the home pages of some of the world’s most popular Web sites, amounted to an abuse of trust and a misuse of power.
Oh, man. Don’t make me laugh. Once again, this is coming from Cary Sherman — the master of mistruths himself. And he’s really claiming that Google and Wikipedia informing the world of a dangerous bill is an “abuse of trust”? Really?!? I’d argue it was the exact opposite. It was an effort to build trust. The public trusts Google and Wikipedia to look out for their best interests, and this was a way that those sites did so — after many, many people had raised their own concerns about these bills.
When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading, they are duping their users into accepting as truth what are merely self-serving political declarations.
Oh, come on. Seriously? Has the RIAA or Sherman ever stated anything in a completely non-misleading way? Has it ever made a public statement that wasn’t a self-serving political declaration? To accuse others of doing what the RIAA has perfected over the years is just ridiculous.
As for the use of “neutral” here, it’s a perfect example of how Sherman is being disgustingly and obnoxiously dishonest. Wikipedia’s content is created from a neutral point of view, but that doesn’t mean that as a community they can’t speak out on an issue of interest. And the use of “neutral” in connection with Google is a clear shot at the whole net neutrality issue, which again is wholly unrelated to what happened here. To pretend that either company have used “neutral” in a manner to mean that both should shut up and stay mute as the RIAA teamed up with the MPAA to reshape the technological and legal framework of the internet is flat out preposterous.
As it happens, the television networks that actively supported SOPA and PIPA didn’t take advantage of their broadcast credibility to press their case. That’s partly because “old media” draws a line between “news” and “editorial.” Apparently, Wikipedia and Google don’t recognize the ethical boundary between the neutral reporting of information and the presentation of editorial opinion as fact.
Actually, that’s not true. Creative America, the astroturfing group set up by the MPAA, had tons of commercials in favor of SOPA and PIPA running on TV. Separately, while cable news totally ignored the SOPA/PIPA debate for a while, it wasn’t because of any “line” between news and editorial. We heard from multiple journalists employed by some of the largest cable news channels saying that they were directly stopped from covering the SOPA/PIPA fight, because the higher ups didn’t want to give any publicity to the large and growing opposition.
The TV networks might not have “actively supported” the bills in terms of their coverage… but that’s because (as Sherman well knows) these bills were sure shots. From the moment they were introduced, they were expected to sail through Congress. There was little need to promote their position. Instead, the networks “actively” suppressed any news of the opposition. And when Chris Hayes at MSNBC finally broke ranks and did the first major story about SOPA/PIPA… he gave the large majority of the time to NBC Universal General Counsel Rick Cotton, who used the time to spread a long list of misinformation.
The violation of neutrality is a patent hypocrisy: these companies have long argued that Internet service providers (telecommunications and cable companies) had to be regulated under the doctrine of “net neutrality” because of their power as owners of the Internet pipes. But what the Google and Wikipedia blackout showed is that it’s the platforms that exercise the real power. Get enough of them to espouse Silicon Valley’s perspective, and tens of millions of Americans will get a one-sided view of whatever the issue may be, drowning out the other side.
Sherman is either ignorant or lying here. Net neutrality has nothing to do with not expressing your opinion. It has to do with the nature of the internet and whether an intermediary can flat out block access to someone else’s services (kinda like what the RIAA/MPAA wanted to do via SOPA/PIPA). It’s incredibly dishonest to suggest that net neutrality means you can’t express your opinion.
The conventional wisdom is that the defeat of these bills shows the power of the digital commons. Sure, anybody could click on a link or tweet in outrage — but how many knew what they were supporting or opposing? Would they have cast their clicks if they knew they were supporting foreign criminals selling counterfeit pharmaceuticals to Americans? Was it SOPA they were opposed to, or censorship?
And here, Sherman flat out insults the millions of people who spoke out against these bad bills, insisting they were all misinformed. This is why the RIAA is in so much trouble, mind you. It assumes the public is stupid. It assumes its customers are stupid thieves. It never tries to understand what they want or what they’re saying. If the RIAA had real leadership, it might actually try to listen to the public. But that’s not how Sherman does business.
No doubt, some genuinely wanted to protect Americans against theft but were sincerely concerned about how the language in the bill might be interpreted. But others may simply believe that online music, books and movies should be free. And how many of those e-mails were from the same people who attacked the Web sites of the Department of Justice, the Motion Picture Association of America, my organization and others as retribution for the seizure of Megaupload, an international digital piracy operation? Indeed, it’s hackers like the group Anonymous that engage in real censorship when they stifle the speech of those with whom they disagree.
Anonymous is a tiny group of people, and many, many of the people who were against SOPA and PIPA condemned their denial of service campaign. It’s dirty politics to try to smear all of those opposed to these bills with some vigilantes venting about the Megaupload seizure.
And while we’re on the subject of Megaupload (hey, he brought it up), shouldn’t we be discussing how it showed that SOPA/PIPA were unnecessary? Shouldn’t we be discussing how, even if Megaupload was a bad actor, the indictment was dangerously broad in a way that is frightening tons of legitimate companies? Shouldn’t we be discussing how many artists used Megaupload to store their own files, which are now lost? Shouldn’t we be discussing how RIAA artists like Busta Rhymes spoke out in favor of Megaupload and against the RIAA’s position? It seems like that would be a relevant discussion. Too bad Sherman won’t get into that, huh?
Perhaps the issues around Megaupload aren’t as clear-cut as Sherman’s misinformation campaign implies?
Perhaps this is naive, but I’d like to believe that the companies that opposed SOPA and PIPA will now feel some responsibility to help come up with constructive alternatives.
Oh, come on. For decades we have been coming up with constructive alternatives in the form of new services to help you adapt and make more money. And the RIAA’s standard response is to sue them.
The diversionary bill that they drafted, the OPEN Act, would do little to stop the illegal behavior and would not establish a workable framework, standards or remedies.
While I have my reservations about the OPEN Act, nothing stated here is true. It would actually cause tremendous problems for sites that truly are dedicated to infringement and does, in fact, create a framework for stopping those sites.
It has become clear that, at this point, neither SOPA, PIPA nor OPEN is a viable answer. We need to take a step back to seek fresh ideas and new approaches.
Now you say this? After flat out lying, attacking and insulting everyone who fought against these bills? That’s not exactly a way to extend an olive branch.
We all share the goal of a safe and legal Internet. We need reason, not rhetoric, in discussing how to achieve it.
There have been plenty of wide open discussions on this from those opposed to SOPA and PIPA. The folks from the RIAA are welcome to jump into debates here on Techdirt. Or they can go onto Reddit where many of the debates are happening as well. While these are open and there may be some hyperbole mixed in, on the whole there are lots of reasonable points being made. The problem is that we have yet to see any reason, whatsoever, from the RIAA and MPAA. This NY Times piece is a classic example. Eleven paragraphs of pure rhetoric and misinformation… and then at the end, a plea for an end to such tactics? Sorry, but it might help if you actually started dumping the misinformation and nasty rhetoric yourself. Then feel free to join the rest of us on the open internet where these discussions are already ongoing.