Roots of the Online Upheaval of SOPA/PIPA May 13, 2012

I’m in the middle of reading a new book called Hollywood’s Copyright Wars: From Edison to the Internet, by University of Pennsylvania professor Peter DeCherney.  I’ll report back on this book later; today I want to talk about a PhD dissertation that appears in a footnote in this book.

Bill Herman’s dissertation at Penn’s Annenberg School of Communication is called The Battle over Digital Rights Management: A Multi-Method Study of the Politics of Copyright Management Technologies.  It was written in 2009, and it presciently anticipates the online movement that led to the downfall of SOPA and PIPA two years later.

Herman — now a professor of film and media at Hunter College in NYC — looked at four legislative developments in U.S. digital copyright policy and measured how they were influenced by three types of communication: direct communications with legislators (e.g., lobbying), the press, and online.  The four developments were the Audio Home Recording Act (1992), the anticircumvention provision of the Digital Millennium Copyright Act (1998), efforts to revise the DMCA (2003-2005), and the FCC Broadcast Flag regulation (2006).

Herman’s research analyzes communications in those three arenas and grades them according to whether they tilt “strong copyright” or “strong fair use.”  He finds that communications with congress, which tilted strongly “strong copyright,” predominated in the earlier years; press reporting (in the Washington Post and New York Times) was roughly balanced, with a slight “strong fair use” tilt; then online communication took over the debate with a forty-to-one “strong fair use” slant and influenced the repeal of the FCC Broadcast Flag regulation in 2007.  Although Herman is unabashedly on the “strong fair use” side, his methodologies for identifying and characterizing these various communications are rigorous and do not show bias.

In his introduction, Herman writes: “While the time period under study does not include their ultimate triumph at the bargaining table — as of this writing, what I describe as the strong fair use coalition still has not won a major legislative victory — it does include the beginning of their time as a genuine force at that table.”  As a prediction of the online and copyleft communities killing SOPA and PIPA, this is pretty impressive.

Herman’s thesis goes into great detail about the ways in which the “strong fair use” axis posted lots of material online to feed the debate, while the other side didn’t. It’s a trove of factual evidence about how to shape policy debate in the Internet age (and how not to).  It also, in effect, shoots holes in the theory held by some strong-copyright people that a Google-led cabal caused the defeat of SOPA and PIPA.

I admit not to having read the entire 400-plus pages of the dissertation, though it contains a much more manageable 27-page introduction that summarizes the methodology and results.  With that caveat in mind, I can identify one shortcoming in Herman’s methodology that, if he had corrected it, might have changed the nature of his conclusions.

Herman tracked press stories that specifically covered the four legislative developments mentioned above.  But he didn’t track stories that covered the real-world marketplace of the technologies being regulated – articles by the likes of David Pogue in the Times and Walter Mossberg in the Wall Street Journal.  (Nor did he track online content about the same, from the likes of TechCrunch, CNet, etc., not to mention Internet ideologues like Cory Doctorow and thousands or millions of blogs.)

If he had done this, he would have found a much more anti-DRM tilt in the press during the early-mid 2000s than he did.  Articles from this period (and thereafter) took a populist, pro-consumer viewpoint: after all, people read Pogue, Mossberg, and CNet to help them choose the best digital content services and devices.  The job of these writers isn’t to defend the interests of copyright owners or content creators; it’s to help sell newspapers and drive traffic to websites.

These sources routinely praise digital content services and devices that offer as many rights to as much content for as little money as possible.  DRM can be used to enable new content distribution models, but it can also be used to force consumers to pay, limit interoperability, and restrict uses of content that are allowed under copyright law.  Thus it makes sense that these writers would paint DRM in a negative light.

One has to wonder how much the pro-consumer point of view in this press coverage influenced legislation.  The journalists who covered legislative developments during the period Herman studied did not overlap much with those who covered products and services. For example, Jenna Wortham, Jonathan Weisman, and Brian Stelter provided the bulk of legislative coverage at the Times, while over at CNet, Declan McCullagh wrote about policy and legislation while Greg Sandoval did (and does) most of the marketplace coverage.

Herman attributes the “strong fair use” coalition’s increased legislative influence to its greater effectiveness than the “strong copyright” community in putting its message out online.  But I would suggest that they had a lot of help from both professional and amateur writers about consumer media technologies, who led people to wonder why technologies like DRM exist and then what role government plays in them.

It might not be as easy to gauge that influence, but it was — and is — surely significant; and that means that the press could well influence digital copyright legislation more strongly than Herman surmises.  Herman seems eager to glorify the power of the Internet by itself.  While there’s no doubt that Internet forces killed SOPA and PIPA, what Herman calls the “strong fair use” movement has roots outside of the copyleft academia and advocacy groups that he credits (he was an intern at Public Knowledge and considers Larry Lessig a hero).

Regardless, the defeat of SOPA and PIPA has made it clear that the online community now has a lot of power over policy debate.  Gary Shapiro of the Consumer Electronics Association wrote a letter to the editor in the Times admitting that “back rooms do not exist on the Internet.”  I would suggest that if the RIAAs and MPAAs of the world want to understand how to engage the online public in order to shape future legislation, Herman’s thesis ought to be required reading for them.

As a postscript, there is now a bit of overlap in coverage of digital content products and services and legislative policy, now that people are digging through the post-SOPA/PIPA wreckage and considering what to do next.  David Pogue, for example, got around to actually reading the legislation back in January as it was failing.  He made two badly-needed observations: that many of the objectors to SOPA and PIPA didn’t like it simply because it could cut off their supply of free content, and that such people generally didn’t have a clue about the actual legislation and acted on misinformation about it.  Let’s hope that now that Pogue has connected the dots, more people will follow that train of thought to some reasonable policy developments.