Innovation Policy Post

Today’s New York Times features a peculiar editorial titled ‘Would the Bard Have Survived the Web?’, by Authors Guild representatives Scott Turow, Paul Aiken, and James Shapiro in advance of tomorrow’s Senate Judiciary hearing on targeting websites engaged in IP infringement. The column proposes the counterfactual notion that Shakespeare could not have survived in the age of the Internet. (Nevermind that Shakespearean theatre seems to be doing quite well.) It is even more peculiar to point to Shakespeare as evidencing the need for any given modern copyright law, since the playwright’s death predated the 1710 Statute of Anne – the first ‘modern’ copyright law – by nearly a century.

Shapiro’s own book, A Year in the Life of Shakespeare, actually indicates that unauthorized folios in Shakespeare’s era had some positive effects. Shapiro points out that some of the earlier surviving editions of Hamlet are in fact pirated versions; Shakespeare apparently had less interest in publishing than many of his peers. Moreover, Shapiro observes that unauthorized publications compelled Shakespeare’s company to release their own authorized, defensive publication. (This is not unique: Cervantes also implied he was publishing defensively in the prologue to the second volume of Don Quixote, who reports that his sequel was demanded by the public “to dispel the disgust and nausea caused by another Don Quixote who, under the name of a second part, has run masquerading through the whole world.”)

Tomorrow’s hearing will likely feature a discussion of the proposals in the Combating Online Infringement and Counterfeiting Act (COICA), introduced last year. If one has read Jack Goldsmith and Tim Wu’s 2005 book, Who Controls the Internet?, or watched as Egyptian authorities pulled the plug on Internet connectivity during anti-Mubarak protests, some similarities may noted with COICA (the modalities, not the motives). Goldsmith and Wu describe government efforts to control Internet content, including through architectural means, or by exercising control over intermediaries who are within reach, when individuals distributing offensive content are beyond reach. In some cases, the content may involve democracy, or distasteful but Constitutionally-protected hate speech, or Falun Gong; in other cases, the content may be infringing. COICA, then, is another example of targeting intermediaries to regulate actors who are not efficiently policed, or are extra-jurisdictional.

COICA’s primary strategy is to require that certain Internet intermediaries “de-list” sites from the Domain Name System (“DNS”) – the virtual Internet “White Pages” that connect web servers’ easy-to-remember domain names to their unique IP address number. As CCIA President & CEO Ed Black’s written testimony submitted to the committee points out, users can simply point their browsers to IP addresses instead of domain names, or easily configure their computers to use one of millions of offshore ‘phone books’ (DNS servers), thereby circumventing the restriction. As Goldsmith and Wu note, these sorts of regulatory efforts usually produce a sort of arms race, and the winner is usually whichever party is more determined. Most recently, the Pirate Bay fired its own salvo by proposing an alternate, peer-based DNS system which would be beyond the control of ICANN or any national government.

Instead of waging a destructive and inefficient arms race, there are viable solutions to addressing true pirate sites operating abroad. One is to insist that foreign countries uphold their international commitments and enforce their domestic copyright law against the worst offenders. Notwithstanding misleading, wild-eyed estimates about the proportion of Internet bandwidth devoted to copyright infringement, this is a manageable task. According to a recent multi-university study, less than 100 Internet users are responsible for 75% of the downloading, and 66% of the uploading of infringing content on file-sharing networks. According to the authors: “the great success of a massively used application like BitTorrent depends on a few users.” Yet despite the fact that a large portion of online infringement is committed by a relatively small group of people, COICA proposes to re-engineer the technological marvel upon which the White House estimated $2 trillion in U.S. GDP depends.

A safer approach would be to enforce the commitments that our trading partners have made. The U.S. has signed numerous Free Trade Agreements, and over 150 nations have joined the TRIPS Agreement, which requires WTO members to adhere to ‘gold-standard’ international IP norms. The USTR can bring countries who refuse to enforce their IP law before the WTO and demand that they be punished, as it has successfully done with China. Indeed, if we are unwilling to enforce our trading partners’ international trade commitments to protect IP, why did we invest the political capital in securing these agreements in the first place?

The benefits of this approach – in addition to avoiding the security threats posed by COICA – are that when sites are taken down, they disappear worldwide. COICA’s domain name blocking approach, on the other hand, would merely inconvenience Internet users, imposing hurdles which even COICA supporters concede are easily defeated. As Secretary Clinton observed earlier today: “Walls that block the Internet… are far easier to erect than to maintain.”