Scott Cleland Abandons his Regulatory Skepticism, Misunderstands the Copyright Clause

by on November 3, 2011 · 8 comments

I just posted the following comment in response to Scott Cleland’s piece on Forbes: Why Anti-Piracy Legislation Will Become Law.

Scott, have you read my colleague Larry Downes dissection of SOPA over on CNET?  The problem isn’t that the bill is too hard on pirates, but that trying to punish piracy in such a crude and draconion manner has plenty of negative unintended consequences:

SOPA effectively introduces new monitoring requirements for all websites that allow user content, even comments posted to blogs. Rightsholders.. need only “a good faith belief that a Web site is ‘avoiding confirming’ infringement, and they can demand that payment systems and advertising networks cease doing business with the Web site.”

Larry suggests that lawmakers’ focus is simply misguided:

If parasitic foreign Web sites are truly costing the U.S. economy significant losses (a claim made regularly by content industries but without credible data to back it up), then the best use of government resources is not to surgically remove hyperlinks and DNS table entries. Rather, we should step up the pressure on foreign governments to enforce their own laws and international treaties extending U.S. protections abroad.

And indeed, one positive development in SOPA is a provision that does just that. It requires both the State and Commerce Departments to make protection of U.S. copyright and trademark a priority in both diplomatic and trade negotiations. To fulfill SOPA’s stated goal of reducing foreign infringement of U.S. interests, that section should have been the beginning and the end of the bill.

The proposed legislation, unfortunately, goes much farther, losing sight of any actual harms in need of legislative correction, and invoking repeatedly the likely application of the law of unintended consequences.

Larry’s focus on the unintended consequences of regulation, and his emphasis on finding narrow solutions to clearly defined problems is what prudent policymaking should be about.  In fact, that’s why Larry and I at TechFreedom have been so critical of net neutrality regulations as a sweeping, prophylactic remedy for an ill-defined problem when less restrictive alternatives like enforcing antitrust laws and consumer protection laws would work better.  In fact, I seem to recall that you on the same side as us in those arguments!

But I’m sorry to say that I realized long ago that, while we arrived at the same place on net neutrality, we came to it from profoundly different places.  I won’t presume to speculate as to exactly what motivates you, but it sure isn’t the prudent conservatism of Edmund Burke or F.A. Hayek’s focus on the limitations of human knowledge and the dangers of top-down planning.

If anything, you seem to fall into precisely the same mentality that always motivates regulatory advocates: that intentions matter more than results.  The question here isn’t whether the law is well intentioned, or even whether piracy is a huge problem (I’d agree it is). The question is whether this particular approach to combating piracy is worth its costs.  I am, as always, highly skeptical, for the reasons Larry explains (and has explained in his past work in this area).

Perhaps after you’ve read his work, you could enlighten us as to why he’s mistaken about these apparently significant unintended consequences of draconian copyright enforcement.  The same concerns are shared by many other copyright lawyers and folks who’ve worked at the very companies that will have to try to figure out what this poorly-worded law means.  (Where did you study copyright law, again?  Or, which Internet companies have you worked at?)

In the meantime, I will limit myself to objecting to this paragraph:

Opponents’ intimations that the Tea Party movement is somehow a strong ally against property rights enforcement is deceptive and does not withstand scrutiny. The Tea Party stands for the limited government principles of the Founding Fathers embodied in the U.S. Constitution. To see for yourself that this bill is completely aligned with the U.S. Constitution, which is clearly pro-property rights and property rights enforcement, just look at Article I Section 8: where it says: “The Congress shall have the power… to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” and “…to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.”

Your argument seems to be: this bill is pro-copyright, the Constitution is pro-copyright…. therefore… this bill is “completely aligned” with the Constitution!  This is precisely the sort of wooden application of the Constitution that gives serious constitutionalists such a bad name.  Our nation’s framers, including Thomas Jefferson, thought it extremely important that any government action aimed at securing the exclusive rights of authors and investors be carefully and cautiously tailored to benefit society as a whole.  For example, see Jefferson’s refutation of the suggestion that inventors “have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs” (which is how the Europeans still conceive of both copyright and patents).  Thus, if the the Copyright clause is “clearly” anything, it is utilitarian.  That is, Congress is granted the power to create and enforce copyrights “to promote the progress of science and the useful arts.”

Thus, the questions about trade-offs Larry raises are precisely the questions the Constitution requires Congress to ask in legislating new copyright regulations—and make no mistake about it: however much you value rewarding content creators, copyright laws are regulations.  Like all regulations, they are subject to regulatory capture by special interests and to the law of unintended consequences.  (I know you get this in the context of net neutrality, but why not here?)

So, please, spare us your simplistic attempt to reduce this all to a “political clash between pro-IP forces and anti-IP forces.”  There certainly are leftist groups criticizing the bill who never met a copyright law they liked; some might go so far as to defend clear examples of piracy.  I certainly would not.  My message on copyright is the same as my message on all attempts to regulate the Internet: Congress should (1) identify clear harms, (2) look for narrowly tailored solutions, (3) ask whether the regulation’s benefits outweigh its costs, considering its likely unintended consequences, and (4) focus on finding the least-restrictive solutions available.

This is what it means to fight for “tech freedom”—and what we at TechFreedom try to do across the board.  What are you fighting for, exactly?  Where’s that healthy skepticism that made you worry about the unintended consequences of net neutrality regulation?  WWHS (What Would Hayek Say)?

Put more simply: good intentions don’t matter. You should know this better than anyone from having watched the FCC become a rogue agency because of the vague and broadly worded language of the Communications Act.  Sorting out this mess can’t be left up to the courts: betting the Internet’s future on the unpredictable whims of federal judges is a recipe for disaster and an affront to the rule of law.

  • Steve R.

    We are supposed to be a Nation based on the rule of law that provides a level playing field. Mr. Cleland viewpoint would do serious damage to the rule of law, he is essentially advocating corporatism. That is, that the law specifically serves corporate interests to the exclusion of the interests of the citizens.

    Berin makes a very powerful observation that: “SOPA effectively introduces new monitoring requirements for all websites…”. (emphasis added) Exactly how can the US Constitution be twisted to force a private party to spy on the activities of another person?

    David Sohn made the critical observation: “But the beauty of this provision, from the point of view of a rights holder, is that there is no need to go to court to puzzle through what this means.  Instead, rights holders can decide for themselves. (emphasis added) Basically, that means that the rights holder can unilaterally and arbitrarily declare someone a criminal an take some adverse action.

    Police state anyone? While protecting real property is a legitimate government function it can not be used as a sledge hammer that castrates the citizens of their rights under the US Constitution. I also need to clarify that so-called “intellectual property” does NOT constitute real property.

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  • Richard Bennett

    The days of the government turning a blind eye to piracy are coming to an end. We all understand that in the early days of broadband, piracy was the “killer app” that motivated people to pay for  high speed internet service when they didn’t have any other motivation to do so. Section 230 enshrined the blind eye into law.

    Unfortunately, some of the largest Internet concerns currently going have business models that depend heavily on their ability to continue to appropriate other people’s information and use it for their own purposes. These firms tended to be the loudest voices advocating for net neutrality regulations, and now they’re opposing copyright enforcement. Their regulatory model is very simple: “Regulate my rival, but leave me alone.”

    Opposition to net neutrality came not only from people worried about regulatory capture, it also came from people who understand that the Internet’s utility can be enhanced by the very practices that NN seeks to ban, such as Quality of Service enhancement for a fee. Verizon is developing just just a system for their LTE network, and the fanatics are railing against it.

    The Internet is unfortunately just as friendly to crime as to legitimate business, and if your concept of “Internet Freedom” includes the freedom to run criminal enterprises in the net, it’s important to the Internet that you lose.

  • Steve R.

    Quite true “The Internet is unfortunately just as friendly to crime as to legitimate business …”.  But how do you reconcile Libertarian concepts of limited and small government with the demand for ever greater government intrusion to “protect” whatever businesses claim (either justly or unjustly) to that they own.  It would be the responsibility of businesses to “protect” their content and not that of the government.

    What is even more egregious. The very act of “protecting” content usually involves packet inspection. To me, that is equivalent to anyone being allowed to enter your house without a search warrant whenever they feel like it.  Protecting private property is a legitimate government function, but the person asserting theft should have to comply with due process and should not have the unilateral whimsical ability to deprive a citizen of their civil rights to “protect” their property.

    There is also an issue of what constitutes property that would  be entitled to government protection.  Just because some business asserts that it owns something does not mean that it actually does. With the advent of the internet, businesses have be participating in a massive land-grab asserting all sorts of non-existent property rights. As one example, the concepts of the Public Domain and First Sale are under attack.  I do not consider so called “intellectual property” to be a valid property right.

    Protecting private property is a legitimate government activity but it should not be structured in a manner that gives all rights of execution to business.  That would be corporatism not free enterprise.

    Also, for those who assert that government stay out of the private sector, you have to take the bad with the good. Especially within the context and avocation of keeping the government out of the private sector.

  • Richard Bennett

    Is this anti-libertarian rant supposed to respond to my comment? It’s pretty random.

    Masnick’s complaint is idiotic. People have been unjustly convicted of murder from time to time, but we don’t erase the murder laws to prevent that.

    Try to make a serious point.

  • Steve R.

    This is not a anti-libertarian rant at all. If you truly believe in keeping the government out of the private sector that implies less regulation.

    Your reference concerning murder ignores the critical issue of “due process”. Yes people have been unjustly convicted of murder, but in theory they went before a court to assess whether they were guilty or not. The problem with many laws being implemented today is that we are implementing “automated” justice were a company or even the government can take any adverse action they want against a person without any proof of wrongdoing.  Furthermore, the person who has been unilaterally declared guilty has little recourse to refute or to appeal the (fake) accusation of guilt.  That inappropriate automated declaration of guilt not one of the concepts that our legal system is based on.

    Washington Times Editorial: The speed-camera lie. The editorial writes: Traditional law-enforcement duties are best performed by men, not machines. This is the case in Maryland, where speed cameras continue to pronounce the innocent guilty, regardless of mounting evidence that the measuring devices are faulty.  … In a May 24 letter, Mr. Warrington explained his interest in addressing reliability problems was not ensuring justice but “how we can optimize the productivity of our camera.”” (emphasis added)

  • Richard Bennett

    Show me where I said I anything about “keeping the government out of the private sector” or “automated justice.”

    It’s nice that you like to carry on about your pet peeves, but don’t put them on me.

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