Further thoughts on SOPA, and why Congress shouldn't listen to lobbyists

Colleen Taylor of GigaOM interviewed me yesterday by phone on the subject of why I'm opposed to SOPA. Rather than the usual comments about the potential harm to the internet, I focused on the harm to the very content industry that has proposed the law. I highlighted three issues:

Piracy is not the real problem. It's a symptom of market failure

SOPA protects the wrong people. We need to encourage innovative businesses, not protect those who are unwilling to adapt to new technology

SOPA ignores history. Storied American publishers began as "pirates" in the eyes of the British, yet America grew up to be the largest copyright market in the world.

Read the article: http://gigaom.com/2012/01/13/tim-oreilly-why-im-fighting-sopa/

There was one point, though, that I wanted to expand on. There was a section in the interview entitled "Tech and lobbying don’t mix" that was too short, and effectively misrepresented my views by omitting a key part of my argument. As published, the interview says:

"Certainly, the tech industry needs to do a lot more lobbying in Washington, DC. But the whole notion of lobbying is anathema to so many tech people, and for good reason. We’re used to a world in which people design products that have a purpose, where your work speaks for itself. So yes, the tech industry should try to communicate more with the people in DC, but at the same time, congresspeople need to use more of their own independent judgement."

These comments were in the context of a discussion of Congress' seeming to define its job as simply balancing the concerns of various constituencies, without seeming to use sufficient independent judgment about the accuracy of those concerns.

For example, when I talked with +Nancy Pelosi at Mayor Ed Lee's inauguration on Sunday, she assured me that she was opposed to SOPA, but that the bill couldn't just be voted down because of the concerns of the movie industry. I had this bizarre image of the Google Search Quality team meeting with content farms before rolling out the Panda search update to "take into account their concerns." In the end, Google was making changes that they knew were in the best interest of their users, and the fact that this would hurt the business of various companies producing low-quality content shouldn't (and presumably didn't) enter into the equation.

My point is that when evaluating the request for legislation like SOPA, Congress ought to be considering factors like:

* The credibility of those making claims. The motion picture industry has a history of opposing every new technology, even those that proved ultimately to grow the market. (MPAA head Jack Valenti's claim that the VCR was the equivalent of letting "Jack the Ripper" into your home is the most famous example.)

* The lack of independently verified quantitative evidence that there has been actual harm to the movie business (and other copyright businesses). My conversation with Representative Pelosi focused on my experience as a publisher at O'Reilly, in which losses to piracy are far outweighed by the growth of the market. Far from being hurt by piracy, internet distribution of DRM-free ebooks is the brightest spot in my business, a key driver of growth.

* The overall benefit to consumers in supporting innovative business models that increase access and bring down prices.

This isn't a matter of simply weighing the concerns of one set of lobbyists against those of another, but using a standard of care and independent judgment about what is best for our society.

If Congress isn't knowledgeable enough to make that determination, they need to be consulting independent experts, not lobbyists for one side or the other.

The mismatch between Silicon Valley and Congress isn't just that Silicon Valley isn't engaged enough with lobbying Congress, but that Silicon Valley has this outmoded idea that your ideas succeed when they are right, as proven in the marketplace, rather than because you were better at making a backdoor deal than the next guy.

Congress needs to act the same way, doing deep thinking and research about which policy approaches will best serve our country, rather than simply trying to balance the requests of various interest groups without regard to what is right.
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