“The Pirate Bay is speech.” This is a quote from one of the gurus perched on the mountaintop of techno-utopianism, John Perry Barlow, who appeared yesterday as a member of a panel discussion held at CES2013 in Las Vegas.
The subject of the discussion was “A pro-artist/pro-innovation approach to copyright,” although the panel did not include anyone representing any counterpoint from contemporary artists, and the conversation was typically vague on what exactly these folks mean by “innovation.” According to moderator Declan McCullugh, a reporter for CNet, an invitation to join the panel was declined by the MPAA; and I suppose that could be considered an effort toward balance, although I think it’s a little like saying, “We’re here to talk auto manufacturing, and the president of Ford doesn’t want to be a straw man, so we didn’t bother to invite any of a zillion other people who make a living actually building cars.” To his credit, McCullugh was mildly deprecating about the one-sided, anti-copyright love fest he was hosting — there’s not much to moderate when everyone agrees with one another — but that doesn’t mean the discussion failed to reveal anything of interest.
The full panel included:
- John Perry Barlow – Co-Founder , Electronic Frontier Foundation, EFF
- Wilson Holmes – Co-Director , Fight for the Future
- Mike Masnick – CEO and Founder , TechDirt
- Hank Shocklee – Founder and CEO, Shocklee Entertainment
- Gigi Sohn – Co-Founder and President, Public Knowledge
- (And surprise panelist) Derek Khanna
Of course, had the panel included an independent filmmaker, a small record label producer, a photographer, or an independent musician, the conversation might have been forced to settle down from its lofty heights and overused talking points poking “the content industry” into the nuts and bolts of everyday realities faced by middle and working-class creators. But the petty challenges of middle-class individuals seem to be of little concern to these folks, who believe they’re on a mission to bring about a brave new world. Gigi Sohn stated that any kind of new anti-piracy legislation, were it to dare raise its head in the post-SOPA landscape of net snipers like Public Knowledge, ought to be “grounded in reality.” It’s hard not to laugh at this in light of the fear-mongering exaggerations promoted by her organization and others about SOPA, but beyond that, reality is by definition something different from the the Internet. As such, I’m grateful to Barlow for making one of the few declarative statements that gets right to the reality underlying much of the noise on these issues.
We could set aside all the nit-picky squabbling over dollars lost and earned by big corporations, all the petty complaints about occasional, improper takedowns, all of Lawrence Lessig’s celebration of remix culture and Derek Khanna’s vague references to innovation, and make a decision as a society as to whether or not Barlow’s statement, “The Pirate Bay is speech,” is correct.
Taking a conservative point of view, law is what we as a society agree is immutable (e.g. murder will probably remain illegal), and anything beyond that is up for discussion and maybe shouldn’t be law. Before we could have a discussion about a new approach to copyright, then, we’d have to decide what, if anything, is immutable. Either Barlow is right that an enterprise like The Pirate Bay, which (let’s not mince words) makes its revenues by exploiting the works and investments of other people, is protected by free speech, or he’s wrong. This is a decision the next generation, one that is used to getting entertainment media for free, has to make; and I believe that if they make the expedient decision that Barlow is right, that they and their kids will pay dearly in the future. And the price could be more than the loss of creative culture.
I think it’s safe to say that, before we were on the Internet, before everything could become sharable data, that nobody would rationally have argued that selling bootleg CDs out of a car trunk would be an act protected by free speech. That being the case, the philosophical/legal question is, “What’s really changed?” The techno-utopian says we have to expand our definition of speech on the grounds that, in the digital age, it is all too easy to chill speech; but they fail to acknowledge that they’re standing on a theoretical peak with slippery slopes on all sides. If we define everything as speech, then it’s true that any restrictions of any kind in the digital world can be said to chill speech. The slippery slope in the other direction, though, is that if the business of The Pirate Bay really is speech, then so is a site or a link that promotes human trafficking. As a matter of pure reason, what’s the difference? In real life, both enterprises involve the exploitation of actual human beings (albeit one more grave than the other); but in cyberspace, both enterprises are just benign data, right? Either we will choose to define boundaries going forward, or we will not; and I am not alone in believing the consequences of that decision will become very real within a couple of decades.
Techno-utopians like the ones on yesterday’s panel like to refer to the horrors of a grandmother having her video taken down, either purposely or by accident, from YouTube and then imply that each of these anomalous incidents moves us one step closer toward authoritarian rule. In response to the comparatively benign deprivation of having a video removed from the Web, these folks would have us hyper-extend speech to the inclusion of real physical and economic harm. As I have argued before, this is like legalizing homicide in order to make sure no one is ever again wrongfully sent to death row. If we can negotiate the gravity of such flaws in our legal framework, surely we can get past a few wrongful yet survivable takedowns on the web.
Ostensibly, this panel discussion was about a copyright system that’s good for artists and innovators; but Barlow’s foundational statement puts the artists, who historically test the power of free speech to profound cultural effect, on par with common thieves who dilute both the cultural and economic value of the works they steal. And the implications could be far more serious than what happens to music and movies. To quote Chris Ruen from his new book Freeloading, in which he unknowingly echoes the name of this blog: “But behind free content’s superficial illusion of more lies a long-term reality of less. Sooner or later, it is something we all have to pay for.” Looking beyond the Web’s ability to expand sharing of entertainment media, I believe that price could be something far more dear than money.