Copyleft & Copyright – Come Together, Right Now…Over BITAG (?)

by Mike Wendy on January 26, 2012

As we move past the wreckage of last week’s SOPA / PIPA battle in Congress – one which defeated, for the time being, legislation designed to stop foreign, online “pirates” – it is important to note that, though the Internet “spoke” resoundingly against the bills, a plain fact remains: Piracy, aided by, yes, the Internet, still runs rampant.

Another important thing to point out is this: Last week’s battle isn’t the end game.

The matter can’t just be swept away because thousands of websites “blacked out” in demonstration against the bills, or because 7 million e-mails found their way to Capitol Hill, urging defeat of “Internet breaking” SOPA and PIPA. Online piracy must be meaningfully addressed or it will sink many of the most productive and innovative people and companies in our economy.

Stated more plainly, the pro-piracy status quo is unacceptable.  It cannot not be fixed (sorry on the double negative).

SOPA and PIPA are part of a larger battle, of course.  Internet piracy harms more than just the makers of movies, music and games.  When we work to protect these forms of entertainment, we’re really working to protect a form of property called intellectual property (IP) – the protection of which helps all types of creators create, knowing they have a better chance to realize a return on their private risk and investment.

Today, IP is the coin of the realm.  Not surprisingly, America leads in the development of IP, with IP-related industries representing about a third of our GDP.  Consequently, IP touches virtually every aspect of the global economy.  Inarguably, protecting IP – such as the ideas and expression that go into making PCs and the Internet’s infrastructure – have made the world better, more productive, safer and freer.  It helps bring a near endless font of solutions to the marketplace, and we’re richer for it.

By not acting to stem piracy, policymakers promote a policy of eating one’s seed corn.  That’s a false economy.

It is true – I did not support SOPA and PIPA.  This is mainly because I think that technology, consumer education tools, competition / reputation management, and industry best practices / peer group self-governance stand a better chance of dealing with policy issues brought about by technological change than do government laws, rules and proscriptions.  This flexibility beats government-imposed myopia more often than not in my book.

However, being a content creator myself – and one who relies on posting my content on the Internet for my sustenance – I have strong sympathies for those who create.  Piracy takes bread out of our mouths.  And, quite simply, calling content creators like myself dinosaurs, and then blaming us for piracy is not much different than blaming a person who has securely locked his house and valuables, but still gets burglarized.

Theft is theft, and those who steal are wrong.

What is the answer, then?

Well, I’ve been thinking about this of late, and going back to the principles noted above, I think one solution deserves a more thorough airing: Industry best practices / peer group self-governance.

A little over a year ago when I was at the Progress and Freedom Foundation (PFF), we supported one such new – and yes, surprising – Internet peer group.  Called BITAG, it was initially developed as a non-governmental response to deal with the divisive matter of Net Neutrality.  It was surprising in that its two founding members – Verizon and Google – were on opposite sides of the coin on the Net Neutrality debate.  Membership has since grown to include all the major players in the Internet economy.

Organized by ex-FCC Chief Technologist, Dale Hatfield, the group works to: 1) educate policymakers on related technical issues; (2) addresses specific technical matters in an effort to minimize related policy disputes; and (3) serves as a sounding board for new ideas and network management practices.

Importantly, as PFF’s Adam Thierer then noted:

…BITAG essentially “de-politicizes” Internet engineering issues by offering an independent forum for parties to have technical disputes mediated and resolved—without government involvement or onerous rulemakings. Consequently, this will help avoid the red tape and incessant delays that usually accompany bureaucratic resolution mechanisms, which can stifle continuous technological innovation and investments.

The diverse array of companies and organizations playing a part in BITAG makes it clear that voluntary technical dispute resolution mechanisms are not only feasible but desired by parties on all sides…

Though ultimately BITAG failed to stop government’s involvement in regulating the Internet via Net Neutrality, the body remains a working forum which shows that seemingly deeply-divided parties can come together and solve complex matters in a timely and flexible way, without the need of “going to Dad” (Uncle Sam) to solve disputes.

The Internet was built on this type of cooperation.  Notes FCC Commissioner Robert McDowell in his Open Internet proceeding statement:

[T]he Internet is perhaps the greatest deregulatory success story of all time. It became successful not by government fiat, but by all interested parties working together toward a common goal.

Though I’m not one to say legislation is never appropriate, I tend to believe that legislating technology is often a fool’s errand.  More often than not it leads to unintended consequences that are as pernicious, or even more so, than the initial policy challenges it sought to fix.

Consistent with both Thierer’s and McDowell’s statements, shouldn’t the Internet community give BITAG, or some similar non-governmental model, an earnest try to arrest online piracy?  Isn’t cooperation of this sort in our DNA?

It certainly won’t break the Internet.

Richard Bennett January 27, 2012 at 6:35 am

Funny you should say that. BITAG was preparing to analyze DNS Filtering when SOPA/Protect IP were withdrawn. The organization may still do something in that direction, but it’s not free of bias altogether so the outcome is uncertain. I’ll share your thoughts with BITAG’s Tech. Working Group members.

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