You know how you can tell a social or political point of view is losing ground?  When the crazy stuff bubbles to the surface.   Here in the U.S., for example, the GOP is floundering because it has a bit of a crazy people problem.  Intelligent conservatives remain frustrated by the headline-making loons in their party who don’t realize the sexual revolution already happened.  I certainly do a spit-take just like millions of others when I read about yet another politician who wants to make gayness illegal or roll back the rights of women to the dark ages, but I temper my own reaction with the faith that at least some of this righteous regressiveness is due to the disintegration of a dying element in our politics, just fading voices trying to be heard against the tidal wave of history.  Interestingly, the anti-copyright crowd would have you believe the same thing about those of us who speak out in defense of this body of law — that we are the ones clinging to a set of old values and methodologies while the future moves inexorably away from our world view because we don’t realize the digital revolution already happened.  But even a casual sampling of observations suggests to me that it is the presumptive revolutionaries on these matters whose positions are fizzling like an unstable isotope.

Speaking broadly, I’ve been paying close attention to this debate for just about two years, and it was this time last year that I started writing and hosting this blog.  Regarding copyright, it’s clear that the largest plank in the anti platform is the assertion that this system of laws stifles innovation.  Yet, despite the constant repetition of this particular thesis, I have yet to encounter one solid example of some economy-growing innovation being asphyxiated by the alleged toxicity of copyright.  From talks and articles by the learned Mr. Lessig to the smart-aleck drumbeat of Techdirt to the un-researched RSC memo of Derek Khanna to even the testimony of innovators last week before the House Judiciary Committee, nobody has presented any tangible examples of the untapped opportunities we are failing to exploit to the benefit of our prosperity.  I keep listening for a solid example, and I would not write in opposition if I heard one. After all, I have kids who need jobs in the future; and I no more wish to protect irrelevant, economically untenable, legal systems than I want my daughter growing up in a society without rights for women.  But after two years of listening, I got nothin’.

And not unlike the minutia-madness exhibited by factions of the contemporary GOP, we seem to be witnessing a lot of desperate scrambling these days among copyright’s antagonists; and it is interesting to watch some of the wheels come off just as we head into Fall and a comprehensive review of the law.  At one extreme we have Rick Falkvinge, founder of the European Pirate Party, sounding in this recent article like the black knight from Monty Python’s Holy Grail, proclaiming victory within his grasp despite having all four limbs hacked off.  To quote musician/journalist Helienne Lindvall, “As a Swede living in the UK, I can tell you how little influence the Pirate Party has in either country. Sure, they had a perfect storm back in 2009, when the Pirate Bay trial coincided with the election for the EU Parliament, managing to get two reps elected. But in the general election the following year the party got 0.65% of the vote, so has no representatives at all in the parliament/riksdag. They still feature in media debates on copyright – after all, a little controversy increases viewer numbers – but are largely viewed as a sideshow.”

Two posts ago, I wrote about the strange macro-economics of CCIA lobbyist Matt Schruers making the astonishingly facile argument that money not spent on media still goes into the economy somewhere.  And this week, Mr. Schruers offers this report stating that search engines (i.e. Google) actually contribute very little to pirate website traffic, whence we are meant to draw the conclusion that “disappearing” search results is unlikely to have a substantial effect on infringement because most users intent on finding illegal media already know where they’re going. Aside from substantiating a generalization that seems intuitive, the report indicates that, for example, a mere 8% of traffic to The Pirate Bay comes from a Google search. It’s worth noting, though, that if this number is accurate, that’s still about 240 million page views for the largest infringing site in the world. (See also VoxIndie’s analysis of this report.)

But in the scheme of what we’re talking about, does it matter if search is responsible for 8, 15, or 30 percent of traffic to TPB when the funding industry behind the study is responsible for 100% of the PR messages that tell users media piracy is socially beneficial, and copyright is irrelevant in the digital age? Or when that funding industry profits from said traffic no matter how it travels? Because I’m pretty sure U.S. companies are supposed to be 0% responsible for supporting or profiting from illegal markets, so I personally find studies like these and the not-so-investigative journalism they spawn to be exactly the kind of distraction they’re designed to be.  It’s lobbyist hairsplitting reminiscent of the political spin used by interests who are skating on rather thin ice — and probably in the wrong direction.

After two years of paying close attention to these matters, I can say that both anecdotal and studied evidence suggests that most of the general public and leaders in the U.S. and abroad still support creator and author rights. In fact, very few outspoken antagonists of copyright can even bring themselves to openly say that creator rights are unimportant.  This makes sense given the likelihood that anywhere from 30 to 50% of the people you know are rights holders or direct beneficiaries of intellectual property.  As outspoken and unapologetic as musician David Lowery has been on these issues, his bands Camper Van Beethoven and Cracker have actually seen an increase in their fan base and overall support.  Chris Ruen, in his book Freeloading, states that nearly everyone he speaks to about the ills of freely downloading music come to understand the mechanics at play and to sympathize with the musicians being harmed.  In late July, the American Consumer Institute released a report indicating that 90% of Americans support and understand the value of intellectual property rights.  And just last week, US Commerce Secretary Penny Pritzker announced during a presidential visit to Music Row in Nashville, “Instead of viewing a new album as an expense to our economy, we now view it as an asset, because it supports jobs and generates revenue for years to come.”  This was in reference to a recent change in how we calculate GDP to reflect innovation, R&D, and the creation of “multiple types of intellectual property” like movies, books, music, and television.

This is where the real conversation is going.  So, it’s little surprise to see the anti-copyright crowd grasping at so many flimsy straws.