TEDSalon NY2012

Clay Shirky: Why SOPA is a bad idea

Filmed:

What does a bill like PIPA/SOPA mean to our shareable world? At the TED offices, Clay Shirky delivers a proper manifesto -- a call to defend our freedom to create, discuss, link and share, rather than passively consume.

- Social Media Theorist
Clay Shirky argues that the history of the modern world could be rendered as the history of ways of arguing, where changes in media change what sort of arguments are possible -- with deep social and political implications. Full bio

I'm going to start here.
00:15
This is a hand-lettered sign
00:17
that appeared in a mom and pop bakery
00:19
in my old neighborhood in Brooklyn a few years ago.
00:21
The store owned one of those machines
00:24
that can print on plates of sugar.
00:26
And kids could bring in drawings
00:28
and have the store print a sugar plate
00:30
for the top of their birthday cake.
00:33
But unfortunately, one of the things kids liked to draw
00:35
was cartoon characters.
00:38
They liked to draw the Little Mermaid,
00:40
they'd like to draw a smurf, they'd like to draw Micky Mouse.
00:42
But it turns out to be illegal
00:45
to print a child's drawing of Micky Mouse
00:47
onto a plate of sugar.
00:50
And it's a copyright violation.
00:53
And policing copyright violations
00:55
for children's birthday cakes
00:57
was such a hassle
00:59
that the College Bakery said,
01:01
"You know what, we're getting out of that business.
01:03
If you're an amateur,
01:05
you don't have access to our machine anymore.
01:07
If you want a printed sugar birthday cake,
01:09
you have to use one of our prefab images --
01:11
only for professionals."
01:15
So there's two bills in Congress right now.
01:17
One is called SOPA, the other is called PIPA.
01:20
SOPA stands for the Stop Online Piracy Act.
01:22
It's from the Senate.
01:24
PIPA is short for PROTECTIP,
01:26
which is itself short for
01:29
Preventing Real Online Threats
01:31
to Economic Creativity
01:33
and Theft of Intellectual Property --
01:35
because the congressional aides who name these things
01:37
have a lot of time on their hands.
01:39
And what SOPA and PIPA want to do
01:41
is they want to do this.
01:43
They want to raise the cost
01:45
of copyright compliance
01:47
to the point where people simply get out of the business
01:50
of offering it as a capability to amateurs.
01:53
Now the way they propose to do this
01:56
is to identify sites
01:59
that are substantially infringing on copyright --
02:01
although how those sites are identified
02:03
is never fully specified in the bills --
02:05
and then they want to remove them from the domain name system.
02:07
They want to take them out of the domain name system.
02:10
Now the domain name system
02:12
is the thing that turns human-readable names, like Google.com,
02:14
into the kinds of addresses
02:17
machines expect --
02:19
74.125.226.212.
02:21
Now the problem with this model of censorship,
02:26
of identifying a site
02:29
and then trying to remove it from the domain name system,
02:31
is that it won't work.
02:33
And you'd think that would be a pretty big problem for a law,
02:35
but Congress seems not to have let that bother them too much.
02:38
Now the reason it won't work
02:40
is that you can still type 74.125.226.212 into the browser
02:42
or you can make it a clickable link
02:46
and you'll still go to Google.
02:48
So the policing layer
02:51
around the problem
02:53
becomes the real threat of the act.
02:55
Now to understand how Congress came to write a bill
02:59
that won't accomplish its stated goals,
03:02
but will produce a lot of pernicious side effects,
03:05
you have to understand a little bit about the back story.
03:07
And the back story is this:
03:09
SOPA and PIPA, as legislation,
03:11
were drafted largely by media companies
03:13
that were founded in the 20th century.
03:16
The 20th century was a great time to be a media company,
03:18
because the thing you really had on your side was scarcity.
03:20
If you were making a TV show,
03:23
it didn't have to be better than all other TV shows ever made;
03:25
it only had to be better
03:29
than the two other shows
03:31
that were on at the same time --
03:33
which is a very low threshold
03:35
of competitive difficulty.
03:37
Which meant
03:40
that if you fielded average content,
03:42
you got a third of the U.S. public for free --
03:44
tens of millions of users
03:47
for simply doing something
03:50
that wasn't too terrible.
03:52
This is like having a license to print money
03:54
and a barrel of free ink.
03:56
But technology moved on, as technology is wont to do.
03:58
And slowly, slowly, at the end of the 20th century,
04:01
that scarcity started to get eroded --
04:04
and I don't mean by digital technology;
04:06
I mean by analog technology.
04:08
Cassette tapes, video cassette recorders,
04:10
even the humble Xerox machine
04:12
created new opportunities
04:14
for us to behave in ways
04:16
that astonished the media business.
04:18
Because it turned out
04:20
we're not really couch potatoes.
04:22
We don't really like to only consume.
04:24
We do like to consume,
04:27
but every time one of these new tools came along,
04:29
it turned out we also like to produce
04:32
and we like to share.
04:34
And this freaked the media businesses out --
04:36
it freaked them out every time.
04:38
Jack Valenti, who was the head lobbyist
04:40
for the Motion Picture Association of America,
04:42
once likened the ferocious video cassette recorder
04:44
to Jack the Ripper
04:48
and poor, helpless Hollywood
04:50
to a woman at home alone.
04:52
That was the level of rhetoric.
04:55
And so the media industries
04:57
begged, insisted, demanded
04:59
that Congress do something.
05:01
And Congress did something.
05:03
By the early 90s, Congress passed the law
05:05
that changed everything.
05:07
And that law was called the Audio Home Recording Act
05:10
of 1992.
05:12
What the Audio Home Recording Act of 1992 said was,
05:14
look, if people are taping stuff off the radio
05:17
and then making mixtapes for their friends,
05:19
that is not a crime. That's okay.
05:22
Taping and remixing
05:25
and sharing with your friends is okay.
05:27
If you make lots and lots of high quality copies and you sell them,
05:30
that's not okay.
05:32
But this taping business,
05:34
fine, let it go.
05:36
And they thought that they clarified the issue,
05:38
because they'd set out a clear distinction
05:41
between legal and illegal copying.
05:43
But that wasn't what the media businesses wanted.
05:45
They had wanted Congress
05:48
to outlaw copying full-stop.
05:50
So when the Audio Home Recording Act of 1992 was passed,
05:53
the media businesses gave up on the idea
05:56
of legal versus illegal distinctions for copying
06:00
because it was clear
06:02
that if Congress was acting in their framework,
06:04
they might actually increase the rights of citizens
06:06
to participate in our own media environment.
06:10
So they went for plan B.
06:12
It took them a while to formulate plan B.
06:14
Plan B appeared in its first full-blown form
06:16
in 1998 --
06:18
something called the Digital Millennium Copyright Act.
06:20
It was a complicated piece of legislation, a lot of moving parts.
06:23
But the main thrust of the DMCA
06:25
was that it was legal to sell you
06:28
uncopyable digital material --
06:30
except that there's no such things as uncopyable digital material.
06:32
It would be, as Ed Felton once famously said,
06:35
"Like handing out water
06:37
that wasn't wet."
06:39
Bits are copyable. That's what computers do.
06:41
That is a side effect of their ordinary operation.
06:44
So in order to fake the ability
06:47
to sell uncopyable bits,
06:49
the DMCA also made it legal
06:51
to force you to use systems
06:53
that broke the copying function of your devices.
06:56
Every DVD player and game player
06:59
and television and computer you brought home --
07:01
no matter what you thought you were getting when you bought it --
07:04
could be broken by the content industries,
07:07
if they wanted to set that as a condition of selling you the content.
07:10
And to make sure you didn't realize,
07:13
or didn't enact their capabilities
07:16
as general purpose computing devices,
07:19
they also made it illegal
07:21
for you to try to reset
07:23
the copyability of that content.
07:25
The DMCA marks the moment
07:27
when the media industries
07:29
gave up on the legal system
07:31
of distinguishing between legal and illegal copying
07:33
and simply tried to prevent copying
07:36
through technical means.
07:39
Now the DMCA had, and is continuing to have, a lot of complicated effects,
07:41
but in this one domain, limiting sharing,
07:44
it has mostly not worked.
07:47
And the main reason it hasn't worked
07:49
is the Internet has turned out to be far more popular and far more powerful
07:51
than anyone imagined.
07:54
The mixtape, the fanzine,
07:57
that was nothing compared to what we're seeing now
07:59
with the Internet.
08:01
We are in a world
08:03
where most American citizens
08:05
over the age of 12
08:07
share things with each other online.
08:09
We share written things, we share images,
08:11
we share audio, we share video.
08:13
Some of the stuff we share is stuff we've made.
08:15
Some of the stuff we share is stuff we've found.
08:17
Some of the stuff we share
08:19
is stuff we've made out of what we've found,
08:21
and all of it horrifies those industries.
08:23
So PIPA and SOPA
08:26
are round two.
08:28
But where the DMCA was surgical --
08:30
we want to go down into your computer,
08:32
we want to go down into your television set, down into your game machine,
08:35
and prevent it from doing
08:38
what they said it would do at the store --
08:40
PIPA and SOPA are nuclear
08:42
and they're saying, we want to go anywhere in the world
08:44
and censor content.
08:48
Now the mechanism, as I said, for doing this,
08:50
is you need to take out anybody
08:53
pointing to those IP addresses.
08:56
You need to take them out of search engines,
08:58
you need to take them out of online directories,
09:00
you need to take them out of user lists.
09:02
And because the biggest producers of content on the Internet
09:05
are not Google and Yahoo,
09:09
they're us,
09:12
we're the people getting policed.
09:14
Because in the end,
09:16
the real threat
09:18
to the enactment of PIPA and SOPA
09:21
is our ability to share things with one another.
09:24
So what PIPA and SOPA risk doing
09:27
is taking a centuries-old legal concept,
09:30
innocent until proven guilty,
09:33
and reversing it --
09:35
guilty until proven innocent.
09:37
You can't share
09:39
until you show us
09:41
that you're not sharing something
09:44
we don't like.
09:46
Suddenly, the burden of proof for legal versus illegal
09:48
falls affirmatively on us
09:51
and on the services
09:53
that might be offering us any new capabilities.
09:55
And if it costs even a dime
09:58
to police a user,
10:01
that will crush a service
10:03
with a hundred million users.
10:05
So this is the Internet they have in mind.
10:07
Imagine this sign everywhere --
10:09
except imagine it doesn't say College Bakery,
10:12
imagine it says YouTube
10:15
and Facebook and Twitter.
10:17
Imagine it says TED,
10:19
because the comments can't be policed
10:21
at any acceptable cost.
10:24
The real effects of SOPA and PIPA
10:27
are going to be different than the proposed effects.
10:30
The threat, in fact,
10:33
is this inversion of the burden of proof,
10:35
where we suddenly
10:38
are all treated like thieves
10:40
at every moment we're given the freedom to create,
10:42
to produce or to share.
10:45
And the people who provide those capabilities to us --
10:48
the YouTubes, the Facebooks, the Twitters and TEDs --
10:51
are in the business
10:54
of having to police us,
10:56
or being on the hook for contributory infringement.
10:58
There's two things you can do
11:01
to help stop this --
11:03
a simple thing and a complicated thing,
11:05
an easy thing and a hard thing.
11:08
The simple thing, the easy thing, is this:
11:10
if you're an American citizen,
11:12
call your representative, call your senator.
11:14
When you look at
11:17
the people who co-signed on the SOPA bill,
11:20
people who've co-signed on PIPA,
11:23
what you see is that they have cumulatively received
11:25
millions and millions of dollars
11:28
from the traditional media industries.
11:31
You don't have millions and millions of dollars,
11:33
but you can call your representatives,
11:35
and you can remind them that you vote,
11:37
and you can ask not to be treated like a thief,
11:40
and you can suggest that you would prefer
11:43
that the Internet not be broken.
11:45
And if you're not an American citizen,
11:48
you can contact American citizens that you know
11:50
and encourage them to do the same.
11:52
Because this seems like a national issue,
11:54
but it is not.
11:56
These industries will not be content
11:58
with breaking our Internet.
12:00
If they break it, they will break it for everybody.
12:02
That's the easy thing.
12:05
That's the simple thing.
12:07
The hard thing is this:
12:09
get ready, because more is coming.
12:11
SOPA is simply a reversion of COICA,
12:14
which was purposed last year, which did not pass.
12:17
And all of this goes back
12:19
to the failure of the DMCA
12:21
to disallow sharing as a technical means.
12:23
And the DMCA goes back to the Audio Home Recording Act,
12:25
which horrified those industries.
12:28
Because the whole business
12:30
of actually suggesting that someone is breaking the law
12:32
and then gathering evidence and proving that,
12:35
that turns out to be really inconvenient.
12:37
"We'd prefer not to do that,"
12:40
says the content industries.
12:42
And what they want is not to have to do that.
12:44
They don't want legal distinctions
12:47
between legal and illegal sharing.
12:49
They just want the sharing to go away.
12:51
PIPA and SOPA are not oddities, they're not anomalies,
12:53
they're not events.
12:56
They're the next turn of this particular screw,
12:58
which has been going on 20 years now.
13:01
And if we defeat these, as I hope we do,
13:03
more is coming.
13:05
Because until we convince Congress
13:07
that the way to deal with copyright violation
13:12
is the way copyright violation was dealt with with Napster, with YouTube,
13:15
which is to have a trial with all the presentation of evidence
13:19
and the hashing out of facts and the assessment of remedies
13:22
that goes on in democratic societies.
13:25
That's the way to handle this.
13:27
In the meantime,
13:29
the hard thing to do is to be ready.
13:31
Because that's the real message of PIPA and SOPA.
13:33
Time Warner has called
13:35
and they want us all back on the couch,
13:37
just consuming --
13:39
not producing, not sharing --
13:41
and we should say, "No."
13:43
Thank you.
13:45
(Applause)
13:47

▲Back to top

About the Speaker:

Clay Shirky - Social Media Theorist
Clay Shirky argues that the history of the modern world could be rendered as the history of ways of arguing, where changes in media change what sort of arguments are possible -- with deep social and political implications.

Why you should listen

Clay Shirky's work focuses on the rising usefulness of networks -- using decentralized technologies such as peer-to-peer sharing, wireless, software for social creation, and open-source development. New technologies are enabling new kinds of cooperative structures to flourish as a way of getting things done in business, science, the arts and elsewhere, as an alternative to centralized and institutional structures, which he sees as self-limiting. In his writings and speeches he has argued that "a group is its own worst enemy."

Shirky is an adjunct professor in New York Universityʼs graduate Interactive Telecommunications Program, where he teaches a course named “Social Weather.” Heʼs the author of several books. This spring at the TED headquarters in New York, he gave an impassioned talk against SOPA/PIPA that saw 1 million views in 48 hours.

More profile about the speaker
Clay Shirky | Speaker | TED.com