A Guide to Critiquing Copyright in the Digital Age

Anybody can write an editorial criticizing copyright on the Internet. It’s easy and fun! By following this basic guideline to creating an effective rebuttal to any proposal for protecting or enforcing copyrights online, you’ll discover that very little understanding of the issues is required. Once you get the hang of it, you’ll see that you can apply these techniques to nearly all of your editorials by simply exchanging a few names, dates, or legal proposals.  Here’s how it’s done …

1. Remind readers how cool it was when we killed SOPA.

No matter what central point you want to communicate, you will engender confidence in readers by writing a SOPA lead, which should include a recap of how much fun we had bringing about that bill’s staggering defeat. 🙂 It does not matter if your main criticism or recommendation has anything to do per se with the fundamental mechanisms or intent of the original SOPA/PIPA bills.  Since most readers never really understood SOPA/PIPA four years ago, invoking SOPA is the ideal prelude to any criticism you want to make related to enforcing copyrights on the Internet.

In your SOPA lead, be sure to use buzzwords, preferably draconian or overreach. These are highly effective words because readers remain generally unaware that the legal remedies in SOPA already apply in domestically-focused cases of online infringement.  Please refer to the glossary of suggested buzzwords found in the Use of Utter Bullshit described in Appendix B of this guide. DO NOT UNDERESTIMATE THE VALUE OF UTTER BULLSHIT.

To help you with your editorial writing, you will find many examples of the SOPA lead throughout the Web, but here’s a well-constructed version by Mike Montgomery, executive director of CALinnovates, that appeared in The Hill last week:

“Recently, the idea of felony streaming once again reared its ugly head. Making streaming copyright infringement a felony is a terrible idea and an example of backward thinking that creates further rifts between tech and entertainment at a time when these two sectors are not only reliant upon one another, but melding. As some may recall, this kind of backward thinking famously and furiously failed before when it was a key part of the ill-conceived effort known as SOPA-PIPA (Stop Internet Piracy Act / Protect IP Act). So strong was the backlash against these would-be laws and their breathtaking overreach, to this day, the term “SOPA-PIPA” sends chills down the spines of lawmakers.” 

Note how Montgomery uses the SOPA lead in this case at the end of the paragraph to implicitly—rather than explicitly—support his assertion that a current proposal to make infringement via streaming a felony is “a terrible idea” and that it naturally drives a wedge between Hollywood and Silicon Valley.  By effectively using the SOPA lead in this way, the editorial author can avoid discussing technical details, which might  inadvertently contextualize what is actually being proposed, in this case, in the Commercial Felony Streaming Act. For instance, it would be unhelpful if Montgomery attempted to explain why the unions DGA & IATSE—which represent middle-class labor in all areas of motion pictures and television—are endorsing felony streaming. It’s better not to get bogged down in those types of details. If the proposal you want to criticize comes from any part of the motion picture industry, just write Hollywood; if it comes from musicians, just write the recording industry. Keep it simple, broad, and vague in order to properly follow Guideline #2.

2. Remind readers that all remedies to infringement are basically SOPA.

By avoiding technical details, Montgomery demonstrates that there is no need explain why he believes delivering infringed material via streaming should carry a different penalty than delivering infringed material by other means. Instead, by effective employment of the SOPA lead, he can assume the reader will give him the benefit of the doubt that it is both terrible and divisive—just like SOPA! (See how easy that is?) And as a bonus, some readers may even believe that receiving infringed material via streaming would also be a felony, which is exactly the kind of confusion that helps our constituents kill proposals without needing to understand what they are. 😉

Also note that Montgomery effectively connects his SOPA lead to the body of his editorial by a fairly thin thread when he writes that the felony provision was a “key part” of the proposed bills. This is an excellent use of utter bullshit. After all these years, readers are not going to remember that this felony provision was at some point attached to one of the bills but was never central to the remedies proposed by either bill. By avoiding just the right details, you can remind readers that all remedies to copyright infringement are basically SOPA; and then you can proceed to vamp on one of several recommended themes (See Appendix A), which are largely variations on Guideline #3.

3. Remind readers that the copyright industries hate the future.

In this case, we see Montgomery has chosen to segue to the popular theme Hollywood is out of touch, as follows:

“Toughening up the rules around copyright infringement through felony streaming legislation, though, is not the answer to Hollywood’s ills. Legitimate streaming services that, but for their best efforts, violate copyright law already are subject to $150,000 in statutory damages per infringed work. That penalty is more than big enough to make incumbents and start-ups do their best to ensure that no content streaming on their sites violates copyright.” 

Notice that by not trying to explain why he thinks elevating infringement via streaming to a felony is terrible and divisive, Montgomery is free to cite the proposal as yet another example of Hollywood’s reluctance to innovate into the streaming market. If properly executed, this technique should distract readers from considering empirical data—for instance, the rapid expansion of legal streaming platforms for filmed entertainment. This kind of observable evidence could indicate that Hollywood may actually be innovating in the streaming market, which would potentially refute the underlying theme as Montgomery has proposed. But an effective editorial using the techniques we recommend should help readers ignore this kind of contradictory evidence.

We would also not want readers to wonder, in this case, “Who are these legitimate streaming services inadvertently infringing despite their best efforts, to whom Montgomery refers?” Instead, we want readers to imagine that there are scores of innovators who would be afraid to enter a market where infringement via streaming is a felony. AVOID EXAMPLES OR SPECIFICS. It is always better to refer to innovators and innovation generically and hypothetically. Remember that above we said vamp, meaning to extemporize. This is critical. One of the most effective ways to enhance your editorial is to follow Guideline #4.

4. Make some crazy shit up.

This is not the same thing as utter bullshit, which is more akin to what we like to call a reality inversion technique (See Appendix I). Making some crazy shit up is more creative; it’s your opportunity to let your imagination make the editorial your own (not that we encourage ownership of writing per se). For instance, here’s Montgomery making up some pretty crazy shit:

“But the key idea to focus on is “best efforts.” A streaming platform is incentivized to make its best-faith effort on an ongoing basis to ensure that all copyright holders are getting paid but very often the records of who holds those copyrights are unclear. A song might have had 12 writers on it but only ten are listed. Should an executive at a music streaming company be penalized with a giant fine, or jail time, because he didn’t know about those two extra writers?”

That last part about the 12 songwriters, and the executive acting in good faith but going to jail anyway is an excellent example of making crazy shit up and a superb use of the buzzword jail. If you can scare the bejesus (See Appendix K) out of your readers, they may not ask themselves probing questions like these:

What the hell is he talking about?

Does the law really work that way?

Have I ever heard of a case anything like what he’s describing?

These are the types of questions you want to avoid provoking among readers, which is why that SOPA lead is so vital. Think of it as a shield that protects you against readers noticing that you might be making some crazy shit up. Don’t be afraid to get creative! And that brings us to Guideline #5.

5. Write a misleading headline.

You do not have to deliver on the promise of your headline in the body of your editorial. Remember, millions of readers will only ever glance at the headline, so pick one that reinforces a general bias that’s good for our industry but makes us sound reasonable—and that fits the length of a tweet!  As you see, Montgomery has chosen the headline Time for Hollywood and Silicon Valley to stop fighting over copyright. Thousands of social media followers are apt to “Like” and share that headline without knowing what the article actually says. (This is exactly the kind of grassroots activism of the future that the copyright industry likes to hate on.)

Notice how Montgomery’s headline might make a reader think the author has written some kind of thoughtful compromise on copyright between the named parties. DO NOT WRITE SUCH AN EDITORIAL. Instead, as we have seen, the central argument of Montgomery’s article boils down to the following:  That Hollywood is only focused on legal remedies to infringement because it has not accepted the future potential of streaming. That’s not exactly what the headline implies the article will be about, but when we combine the misleading headline with the central argument made in the article itself, we get Hollywood should stop fighting over copyright.  Pretty cool, right?

Ordinarily, if Montgomery’s core argument were presented as a thesis without a SOPA lead, and without employing the techniques described above, some readers might immediately doubt his premise in light of the dramatic growth in legal platforms for streaming filmed entertainment, news, and sports.  And this doubt could, in turn, prompt readers to consider whether or not huge investment in legal streaming and legal remedies for mass copyright infringement might have to coexist in a sustainable, digital marketplace. But by effectively using the techniques in this guide, you can distract the reader from these and many other complex questions.

Good luck. And thank you for being a member of The Future! 🙂

THIS JUST IN:  An expert rebuttal to Montgomery written by Matthew Barblan and Devlin Hartline of The Center for the Protection of Intellectual Property.

Enjoy this blog? Please spread the word :)