Four Fundamental Problems with SOPA

You may have heard about H.R. 3261, better known as the Stop Online Piracy Act. It is a bill in the US House of Representatives that seeks to expand the Federal Government’s power for the purpose of putting an end to piracy online. This has caused much debate and concern, so I thought I’d weigh in with my two cents. Interestingly enough, I could not find anything on the websites for Mises, Lew Rockwell, Freedom Works or the Libertarian Party about SOPA. I figured it would be something that would be lighting up their circuits. Apparently not.

Now I don’t know all of the details of this bill, but I don’t think I need to. Whatever the particulars of such a measures are, they all boil down to the same basic issue: using federal authority to stop the exchange of copyrighted material for no cost and without the consent of the original publisher. I’m aware that copyright law does exist, and I’m also certain that a deep read of the act would simply involve nothing more than a specification for new authority and powers given to the Executive branch for the purpose of enforcement of the existing law. I highly doubt that any new laws are being defined here. But even given these factors, H.R. 3261 cannot but have four basic, fundamental flaws that preclude it from being a legitimate use of Federal power.

1. Free Speech

The fundamental principal on which this country was founded is that individuals have rights that ought never to be infringed. Read the Declaration of Independence and the Constitution of the United States and this philosophy is pervasive. The highest abiding principal of the founders was that the worst thing a government could possibly do would be to deprive their citizens of freedom.

In order to frame this country in such a way as to uphold this maxim, the founder gave us the Bill of Rights which define specific freedoms they believed important to protect. The very First Amendment laid out the freedom of speech. No people can be considered free if they do not have freedom of speech. Unfortunately, SOPA cannot do anything but violate free speech.

The reason for this is simple. I will take, for the sake of argument, the position that online piracy is legitimately a crime and should be stopped. Nevertheless, it is impossible for an act to accurately define what is piracy and what is legitimate free speech. The Volstead Act during Prohibition had this same problem. It was intended to enforce the 18th Amendment – Prohibition. Unfortunately it was a disastrous law. Instead of laying down the proper parameters for enforcing prohibition and successfully stopping the trade of alcohol, its overly strict and Pharisaical definitions cause legitimate substances, such as certain medicines, to be banned, while leaving gaping loopholes through which the Al Capones of the world drove their distribution trucks. If the Federal Government cannot accurately and clearly define what is and what is not legitimate in terms of alcoholic beverages, how can it hope to accurately and clearly define the much more amorphous domain of Internet communication.

If SOPA is implemented, no matter how it is enforced and no matter what definitions are applied, I guarantee two things will happen. First, there will be massive loopholes that will be exploited for the sake of continuing to distribute pirated material in a technically legal way. The second is far worse, however. In the name of enforcing SOPA, the government will stop, prevent, and prosecute legitimate uses of free speech, destroying a fundamental right of its people on the largest, freest and most successful medium ever to allow people to speak freely.

This nation is so clearly founded on the principal of individual rights that we have such provisions as due process written into our legal code. Every accused gets a trial by a jury of his peers. Every accused is considered innocent until proven guilty. Every accused cannot be convicted except when there is no reasonable doubt and such verdict is unanimous. Every convicted is granted the right to appeal. Why? Because in the United States of America, our commitment to individual freedoms and rights is so great that we would rather let a killer go free than to incarcerate or execute an innocent. The former is bad, but he latter is unconscionable!

SOPA, on the other hand, is simply the next example of a disturbing trend that has been developing over the last ten years. It follows the example of the Patriot Act and of the TSA in espousing the exact opposite philosophy to our founders. The government now apparently believes that it is so important to catch the criminals that it is worth the injustice of a few innocents getting caught up as well. These are the policies of despots!

2. The Audacity of SOP(A)

Ron Paul continues to rail against the policies of the US government considering themselves to be the policemen of the world. Usually he talks like this with specific regard to our military actions in the middle east. However, SOPA presents another angle on which this is true.

The Audacity of this government to think they have the right and authority to police the world’s Internet! What right does the US government have to tell people in Sweden what they can and cannot do on the web. The US government may have started the Internet, but it does not own it any longer. The Internet belongs to nobody and everybody. The US government has no right to police the web. Yet they continue to believe themselves the arbiter of all human behavior. This is all I will say on this point.

3. Egregious Misunderstanding of Human Nature

The infringement upon free speech may be the biggest philosophical problem with this law when it comes to justice. But there is also a pragmatic problem when it comes to enforcement. For the same reason that SOPA would unintentionally squelch legitimate uses of free speech, it will unintentionally leave loopholes through which pirates will evade the law. The fact that the government doesn’t get this is no surprise at all. The government seems to have a fundamental misunderstanding of human nature.

Have you ever wondered why people always overthrow oppressive governments? We hate being told what to do! By and large we want to be left alone to do what we want. This has a good side and a bad side. The good side is that responsible people will take care of themselves, their families and their neighbors without the need of the government to intervene, mandate it or regulate it. The bad side is that no matter what laws are in place, people are going to do what they want to do. People will get what they want, and no law or regulation will stop them. Outlaw something and it will simply be traded on the black market.

Don’t believe me? Let’s look at history! The drug war is a classic example. In the 1970’s the US declared war on drugs. 1970’s!!! It’s almost 2012 and drugs are still a problem! Why haven’t they stopped drugs yet? They’ve spent trillions of dollars on it! They’ve had public service announcements galore. Why can’t they stop the drug war? Because no matter what they do, people who want to sell or use drugs will find a way to do what they want if they want it bad enough. Put up whatever blocks you want, and people will find a way around it.

Prohibition is another classic example. They outlawed alcohol and it didn’t go away. The problem got worse. There were more people drinking during prohibition than before prohibition! And, of course, prohibition created the violence of the Al Capone gangsters on top of all of it.

This is why I fear things like gun control. People will get what they want no matter if it’s legal or not. If you outlaw guns, only outlaws will have guns. That’s a bit of a cheesy cliche, but it’s true. Yet the government seems to continue to operate under the delusion that outlawing something will make it go away.

Drugs, Prohibition, Prostitution, Child Porn. These are just a few examples of activities the government has unsuccessfully outlawed. Child Porn may be the most pertinent to our discussion of SOPA. The US Government wants to stop online piracy, and yet it has already shown a fundamental incompetence to control content online! If they try to outlaw piracy, all they will do is force The Pirate Bay down into the deep web where the true creeps of the Internet reside, but it won’t stop. If they use the same tactics they try on child porn, they can only fail. If they try more draconian measures, they may be more successful, but at the cost of trampling all the more on free speech.

4. Incorrect understanding of crime

Up until this point, I’ve maintained an assumption that piracy is a crime and should be stopped. I did this for the sake of argument. But here I’m going to take a slightly different tack and argue against the law behind this act. Any law that bans piracy is illegitimate. Why? Because piracy is not a crime!

What is crime? Crime is any act which unjustly derives another individual or group of individuals of freedom or property. I.E. Crime has a victim. Murder has a victim. Someone is killed. Theft has a victim. Someone suffers the loss of property or capital and must live without it – unless he is insured. Assault, Rape and Fraud are other examples of crimes. When each of these are committed, the criminal is unjustly depriving the victim of freedom or property. I consider health and well being to be a combination of freedom and property.

Drugs, prostitution and piracy, however, are crimes with no victim. Who is a victim of drug use? The person himself? Crime is not an act wherein you deprive yourself of freedom or property. Were that the case it would be a crime to volunteer or to give gifts. A person cannot victimize himself for he is himself.

Perhaps drugs victimizes the criminal’s employer? This is wrong because if there is any problem between the drug user and his employer, it is between them and should be handled as a matter of contract law. Perhaps the drug user victimizes his family? This too is wrong, for if there is any problem between the drug user and his family, it is a private matter between them. If using drugs causes him to commit assault or criminal negligence, then the assault and criminal negligence should be prosecuted on their own merits. The fact that he committed those crimes under the influence of drugs does not change anything. In fact, by that logic, alcohol should be illegal. Perhaps the drug dealer steals in order to support his habit, thus victimizing the one he robs? Here too, we have another crime that can be prosecuted apart from drug use that is unrelated to the drug use. This kind of problem needs not only be limited to drugs. I could steal to support a video game habit, but I don’t. If I did, I would be guilty of theft. Video games wouldn’t need to be outlawed.

I use drugs simply as an example of the kind of thinking I employ. Hopefully I’ve clearly shown my logic here. An act is not criminal unless there is a victim other than the perpetrator himself. Therefore, as I’ve demonstrated, drug use is not criminal except that the government has declared it to be. Prostitution is also not criminal. It is simply the free market exchange of services at an agreed upon price. Perhaps pimps commit crime in the peripheral of prostitution, but those crimes ought to be prosecuted on their own merits. Fundamentally this displays laziness on the part of government. They don’t want to be bothered in the nitty gritty of finding out what is and is not legitimate behavior, they’d rather outlaw the whole activity with a blanket sweep. It makes it easier. It also destroys people.

So I come back to piracy. Who is the victim of piracy? You could argue that piracy is theft against the producing entity (Record Company, Movie Studio). However, I disagree with this assessment. I do so for two reasons. First, piracy does not prevent the producer from making other sales. Second, piracy does not represent a loss of a sale.

Theft removes the property from its original place and takes it somewhere else. If I steal your TV, you no longer have a TV. However, if I go into your house and make an exact replica of your TV and take it home, leaving your TV there, what have I done wrong, besides trespassing? Pirates do not steal the original copy of materials. Neither do they steal the production equipment or instructions for making copies. Nothing done by pirates prevents the studio from making additional copies of the product and selling them at stores.

You could argue that piracy makes purchasing undesirable. If pirates put the product out there for free, why would anyone buy it from the store if they could download it online. There are a number of reasons why someone would still want to make a legitimate purchase of a copyrighted material. I’m not going to enumerate them, but all of them add up to the fact that the movie and music industries didn’t go immediately bankrupt when Napster came online and when The Pirate Bay launched. This goes to support my second sub point here. Piracy does not represent a loss of a sale. If it did, nobody would buy. In reality, those who want to buy buy. Therefore, those who are pirating are not people who were going to buy anyway.

I was involved in piracy in the Napster and Post-Napster/Pre-Itunes era when I would hear a song on the radio, decide I like it and want to buy it. The problem was at this point in history, I would have to buy the entire album in CD form to get the one song I wanted. This amounted to shelling out $17 on something, taking a risk that the rest of the CD was as good as the radio single. Why should I shell out that much when I only want one song. So I downloaded the song online. I would have bought that song if I could, but I would not have bought that CD. So at the time, the record company did not lose a sale. This is just one example scenario.

Ultimately piracy is not an attempt to steal something that would otherwise be purchased. Piracy is actually something much better and more important. Piracy is the consumer market telling the producer that we don’t value the product at the price they are demanding. This is a signal that the industry should listen to. They should respond by doing two things. 1) Work to reduce cost and price. 2) Embrace digital markets and smaller units.

This is a war that Cable TV is currently fighting with the Internet. Hulu, Netflix, EZTV and other outlets have made it increasingly easy to cut the cable ties. What Cable needs to hear is that people are no longer interested in paying large lump sumps every month for 300 channels when they’re probably only going to watch 4. Currently cable is structured in such a way that to get those four, you have to buy the 2nd or 3rd tier package just to get the programming you want. So they can advertise a super low price, but it’s not for the content you want.

Every year during football season I get the itch to order cable so I can have the Big Ten Network and ESPN, but for the rest of the year, I don’t care. I wouldn’t watch cable for 7 months out of the year, and when I would watch it, it would only be about 5 channels. I can’t justify paying for 300 channels all year when I’d only watch 5 channels for 5 months. I don’t value the product at that price. I value it at a much lower price. So I’m content to go without, getting what content I can online and going to bars if I need to in order to not have to pay the exorbitant price and wait until Cable finally gets the message and offers some sort of a la carte options.

Piracy is the same way. Fortunately, the music, movie and book industries are slowly getting it. iTunes, Amazon Marketplace, Netflix and the Kindle are just a few examples of the ways that the free market is starting to take care of this piracy issue. Piracy is hardly tempting anymore. Want to watch a movie but don’t want to buy the DVD? No problem, watch it on Netflix Instant, or wait a week for the DVD. Want just one song and don’t want to have to buy a whole CD? Just download the individual song from iTunes or the Amazon MP3 store. It’s that easy!

The more these types of retail outlets develop, the more legitimate customers who are willing to pay the price for the unpirated product will be able to do so at a price that accurately reflects their value for the product and in a way that is convenient for them. Then the only people engaging in piracy will be the reprobate thiefs who would be the ones to go darknet if SOPA passes anyway. You can’t do anything about them.


So in the end, I hope that I have demonstrated that the US Government’s attempt to stop online piracy is a misguided and doomed attempt to fix something that isn’t broken at the cost of violating its own commitments of freedom to its people and extending that violation to the world.


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