Now that the very early stages of copyright reform are underway with preliminary hearings on Capitol Hill, I think it’s worth revisiting the question as to why the conversation is happening in the first place. There are, of course, specific adjustments to the system that ought to be looked at with regard to media & information distribution in the digital age, but these details are often hard to identify amid the clamor of broad, public messaging that has been pumped out of the Silicon Valley PR leviathan for more than a decade. Instead of specifics, much of the testimony, editorials, and even academic theory can be boiled down to two generalized assertions: 1) the copyright system no longer serves the public interest overall; and 2) the copyright system stifles innovation, which is technically a premise for the first statement. Since I began paying attention to these issues, I have encountered variations on these declaratives more times than I can count; and each time I do, I look for the innovation being stifled by copyright but can’t seem to find it. In fact, if we assemble a few fragmentary glimpses of Google and Silicon Valley, a mosaic begins to take shape and forms a picture that is not exclusively innovative at all.
Innovation is one of those catch-all terms that demands context in order for it to have any discernible value. Eli Whitney didn’t necessarily intend to foster a demand for African slaves in the American South, but both slavery and the war it spawned were consequences of his Cotton Gin. (As a side note, Whitney’s patent was overwhelmingly ignored because he wanted too much money for the simple machine, so IP theft also had a hand in expanding the slave trade and the Civil War.) But, if the copyright system, which has already yielded more than two centuries of tremendous social and economic benefit, is now in fact stifling innovation (as Big Tech insists that it is), we should demand specifics as to exactly what is being stifled, how it’s being stifled, and who would be the beneficiaries of any proposed un-stifling to be undertaken by congress. The last part is easy to answer; Silicon Valley corporations benefit in a system with weak intellectual property laws — or at least they do now that they’ve already built multi-billion-dollar businesses from patented technologies — but the overall benefit to the public of scaling back these laws in the name of vaguely described future “innovation” is questionable.
Assuming we must rationally define innovation as something that fosters prosperity, then a view of Silicon Valley in general, and Google in particular, makes clear that we cannot unequivocally say that their brand of innovation is always a boon to American or universal well being. Yes, there are many businesses made possible by the internet, but this does not mean Google & Co. get all the credit for this entrepreneurism; and neither should we take at face value their claims that IP laws are somehow a threat to such enterprises. Moreover, the leading web companies reveal a culture that belies the kind of universal humanism they tend to preach when they want to rally the public to support their political agendas. This article in the Daily Beast paints a pretty clear portrait of Big Tech as a new American oligarchy that consumes much, controls unprecedented, consolidated wealth, and does not contribute a great deal either to the US or to foreign economies. As a companion piece, this article from The Guardian (shared by a regular reader) reveals a rather disturbing anthropological manifestation in which the minority population of Silicon Valley employees live a detached existence from their Northern California neighbors, with Facebook employees shuttling in private, luxury busses between the city and their corporate cloisters where they enjoy subsidized haut cuisine, barber shops, and massages as part of the working environment. Viewed together, these two shards in the mosaic already begin to project a picture antithetical to the grand, social equalization these wizards claim will be the inevitable byproduct of their monastic labors on our behalf.
Looking at some other pieces in the mosaic, we want to be very careful not to let the word innovation become some new PC term for criminal, unsavory, immoral, or meaningless endeavors just because they’re based in web technology. For instance, Wired offers this detailed account describing Google’s role in “innovating” the sale of millions of dollars worth of illegal and counterfeit drugs. The story describes exactly how federal agents, working with a con-man-turned-cooperator, conducted a sting operation that led to Google settling the case against them for a half-billion dollars. That’s a fine that exceeds the annual revenue of nearly all the largest businesses that depend on copyright and patent protections; whereas for Google, I imagine it’s the snack budget for the programmer pool. In this story at Music Tech Policy, we see that only under pressure from people like Rep. Carolyn Maloney (D-NY) did Google back off the inclusion of the app Utoopi on its Android phones. Utoopi Combines geo-location with escort services in order to “innovate” prostitution, which is known to be a primary driver for “innovating” contemporary human trafficking. And, of course, we had the Google Streets bugaboo, in which the company was charged with “innovating” unauthorized access to private data from people’s computers through open WiFi while driving around in their “innovation” buggies taking photographs.
Yet, for all these shenanigans, Google employs fewer than 40,000 people worldwide, if we exclude the Motorola division. At the same time, Facebook employs fewer than 5,000; Twitter employs just about 1,000; Pandora employs fewer than 500; and Reddit employs about 20. Naturally, these numbers alone do not reflect the gross economic value of the internet, which has fostered many start-ups in many lines of business; but the premise being asserted by this elite group of dominant companies is that IP laws like patents and copyrights are a barrier to even more untapped, economic value. The message being sent is that congress must revise these laws so that we the people can benefit. Start to sound familiar? “Lift these environmental regulations and drill, baby, drill!” But at least in that case, there really is oil in them thar hills, and we can debate the pros and cons of drilling for it. When the internet industry and its paid advocates say copyrights and patents stand in the way of economic opportunity, it’s a double-lie. First, they’re simply serving their own interests; and second, there is no solid evidence that these long-standing rights of creators and inventors inhibit anything that can be called real innovation.
If we are going to allow the internet industry to speak as loudly as it does on the subject of legislative reform this important, their track record on social responsibility should be factored into their testimony. In short, when the web gets ugly and reveals its capacity to enable bullying, defamation, illegal and counterfeit transactions, human trafficking, incitement to terrorism, organized misogyny, and mass copyright exploitation, the owners of these sites and designers of these systems consistently claim the amoral high ground of neutrality. “We are just the highway,” they say, “and we cannot be responsible for how people drive.” And that’s fair enough to an extent, but not when these companies profit, however inadvertently, from exploitation or from some other form of human suffering, and especially not when these same companies presume to take credit for all the social good derived from the internet. It seems to me they want their cake, your cake, my cake, and would like to eat it all.
So, operating under the premise “if it ain’t broke, don’t fix it,” congress should begin with what already works, and has worked for a very long time, in the copyright system. In fact, this week’s WSJ reports, “In the past two decades, intellectual property has emerged as the principal driver of economic growth in the U.S. and other developed countries. IP is now, in many respects, the new global currency.” So, if we are to revise this system at the urging of this small but vocally powerful industry, legislators should get its Cuba Gooding Jr. on and insist, “Show me the innovation.”