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IP and Public Choice

Nothing makes me despair more about the corruption of our legislative process than the dynamic surrounding intellectual property laws. SOPA and PIPA provide yet more evidence, as it if were needed. This article by former lobbyist TC Sottek illustrates the point nicely (HT Balloon Juice):

Lawmakers may have their own parochial interests or lofty causes, but first and foremost they're always looking for votes. To get votes, they need attention and money -- something that corporate lobbyists can dish out in abundance. The end product of this system is lawmaking that's less about making good public policy and more about appeasing the hands that feed as a result, powerful corporations with deep pockets gain unparalleled access to members of Congress, and they help set the agenda. That agenda is why bills like SOPA and PIPA gain such traction they were delivered to Congress in return for money and votes.

I know it's considered naive by many in my line of work to hope for anything more than this, but democracy does not have to work this way. For a variety of reasons, however, ours currently does. And, in the IP context, the result has been a steady diet of ever more expansive IP rights without regard to the costs and increasingly draconian and, in my opinion, counterproductive efforts to prevent online copyright infringement. And, although the legislative process is plainly broken in this area,for a number of reasons (some of them sound), the courts continue torefuse to intervene.

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Wikipedia, among others, has tried to make SOPA a free speech issue. But nobody seems to say *how* it infringes on free speech. Wiki also say that it objects to SOPA because it makes the U.S. internet companies responsible for policing the unlawful actions of foreign companies which do indeed break the copyright laws. This does sound like a valid criticism, if it's true. But is it?So what is this all about? Free speech? Pirating copyrighted materials? Or what?

How could the laws affect free speech? "Opponents of the legislation worry that the language in the House bill is so broad that it would allow content owners to target U.S. websites that aren't knowingly hosting pirated content. This has been a particular concern of bill opponents Facebook, Wikipedia and Twitter, all of which have sites that depend heavily on content uploaded by users.In an extreme case, opponents say, media companies could get a court order blocking payments to an innocent site, with the effect of shutting it down and stripping it of its rights to free speech.Also, they say the legislation would encourage authoritarian countries that have already been trying to block content on the Internet they don't like." - WSJ

Among other things, it allows screwing around with the Domain Name System (which translates commonwealmagazine.org into an Internet network address) in a way that doesn't really solve the piracy problem. Anyone who does pirating already knows how to circumvent the Domain Name System. Here's a couple of good explanations (which hopefully don't contain any pirated material because under SOPA I believe Commonweal would then be liable for copyright infringement because it allowed a link to a site that contained pirated material):http://www.forbes.com/sites/ciocentral/2012/01/18/beyond-sopa-why-easy-s... PDFs linked at the bottom of the Internet Society page are only a few pages long and give a thorough explanation of the issues.

Crystal ===Thanks very much for the information. It seems that both the American internet companies and the foreign ones are giving new meanings to "free speech". As I understand the meaning of "free speech" which is guaranteed by the Constitution, is it mainly the sort of speech whose content is likely to be unpopular and therefore liable to official censorship. Wikipedia and the other American information suppliers seem to be referring to any sort of content which they offer, even content which does not usually invite censorship. I can see their constitutional problem when there is a specific issue (such as their linking to the diplomatic correspondence which Aasange made public) which might invite censorship. But most of their content is not a matter of suppression of "free speech" in the constitutional sense. (Though maybe for internet porn companies it would be.) I don't think the Wiki group has made its case very clearly. The foreign crooks, on the other hand, have given the word "free" a whole different sense -- they want content that is free of charge, as in "free sample" and "free beer". This doesn't seem to have anything at all to do with the Constitution, and given the copyright laws and the rights of authors that material ought to be subject to restrictions.

Thanks, Jeanne. What a headache the policing will be! Still, too many authors and composers and perfermers are ripped off. One of the main problems, I think, is that people are starting to think that everything *ought* to be free like Wikipedia so they have a right to pirated stuff. I suspect many people don't realize how much hard work is involved in being a writer or artist. Or else they just don't mind being cheats. Then, on the other hand, the companies that sell scholarly and scientific articles charge outrageous prices for them. I just read an article (forgot where) about a big international group of scientists who have started an organization to publish their work online and to make it easy to contact others with similar interests. Apparently it makes the scientific process progress much faster -- there is no snail's-pace editorial process. The system seems to have its pros and cons.

It seems to me that we have a basic conflict with copyrights and the "rights" of those people who think that any and everything should be free for the taking.Sooner or later this most likely will advance to that paragon of wisdom and even-handedness, the SCOTUS.

No, Jimmy, it's not "free for the taking". It's freedom from censorship. That's a very big freedom. Nose of the camel. They've lost it in Europe, it seems. If we lose it, too, the sun will no longer shine so brightly. This is a battle that will never end - governments of all stripes love to censor.

Ann,Here's a video I saw today that explains more .... http://youtu.be/S2vFB3qKqoY

Crystal --Thanks, but I can't hear what she's saying.NEWS: The JUstice Dept; has moved against some internet content pirates; Hackers have attacked the Dept's website. Hmm. Really, really ugly.http://www.reuters.com/article/2012/01/20/us-usa-crime-piracy-idUSTRE80I...

It's just nice to see "public choice" in the title of this post. Public choice economists have done hugely important work to devastate the faith in governmental agents to act better than the rest of us, and bloggers here tend to promote freakishly dangerous optimism in the government and democratic processes. So I'm appreciative of Mr. Penalver's nod to this important body of legal, political, and economic scholarship (even though I recognize that he and I have different political-philosophical frameworks; that makes his nod even more appreciated). The conclusion is this: it doesn't matter the merits of SOPA, etc (though I'm against it); what matters is that with legislation, the process won't reflect anything like what voters and constituents hope it will, and the outcomes, if they align with what voters and constituents want, will probably do so by chance.

I'm glad that SOPA and PIPA have been sent back to the workshop. I do entertain a fear that internet enthusiasts may become like the NRA, which believes that virtually any restriction in the trafficking of guns is a threat to the Second Amendment, self-defense, and hunting. This is a purely subjective fear. I hope I'm wrong.

Peter, a little censorship is not a good thing.

David S. --How does enforcing laws against pirating of intellectual property constitute "censorship"?

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About the Author

Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.