Elementary, My Dear SOPA

January 9, 2012 Antonio Ortiz

Last night the second episode of the second series of Sherlock aired in the UK. It was very good, though technically I'm not supposed to know that first hand. Like the first series, created by the imaginative Stephen Moffat and Mark Gatiss, the second series consists of three ninety-minute movies that probably had a collective budget lesser than the two recent Holmes-inspired Hollywood blockbusters. The tv series, a reimagined and modernized version of the classic Doyle stories, is creative, clever and certainly entertaining. And if you live outside of the UK you have to wait until they come to a television near you.

Over the holidays there were many UK tv series with vast worldwide followings premiering episodes, including Downton Abbey, the return of Absolutely Fabulous and let's not forget Doctor Who. They were all great, really great. There is a kind of British television storytelling that you can not find anywhere else. Again, technically I'm not supposed to know that.

Well, I'm okay on the Doctor Who, also under the creative direction of Stephen Moffat, because the BBC, BBC Worldwide and BBC America realized it is one of the most sought-after pieces of digital content on the internet and managed to work out a process by which the episodes premiere in the UK and the US on the same day.

This pursuit of quality art and entertainment, and my support of companies that make it easy for me to consume their products, keeps resonating in my head every time I have a conversation about the Stop Internet Piracy Act (SOPA).

[Let's pause for a surreal aside. In Spanish sopa means soup, so every time I see SOPA on the news I think of soup, specifically the Soup Nazi from Seinfeld yelling " No soup for you!" which seems very fitting.]

It is clear once you see the list of backers and opponents of SOPA it's hard not to identify the generational differences between the two. The majority of the opponents are those businesses that have adopted the new economic value system that emerged from the original propagation of the Internet. To understand its value origins you simply need to spend some time with Steven Levy’s Hackers and the ethos of MIT’s model railroad club. The backers of SOPA clearly come from a more traditional economic reality fixated on managing scarcity – a problem that Copyrights and Intellectual Property (IP) was created to manage. (via SOPA - A symptom of something much bigger)

Current US law extends copyright protection for 70 years after the date of the author’s death. (Corporate “works-for-hire” are copyrighted for 95 years after publication.) But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for another 28 years). Under those laws, works published in 1955 would be passing into the public domain on January 1, 2012. (via What Could Have Been Entering the Public Domain on January 1, 2012? )

At the same time the 1976 Copyright Act was coming into existence and influencing the creation of content the corporation was going through its own transformation, shifting towards a focus on maximizing the return to shareholders. Roger L. Martin, in his book " Fixing The Game," considers this paradigm shift "the dumbest idea in the world."

Martin says that the trouble began in 1976 when finance professor Michael Jensen and Dean William Meckling of the Simon School of Business at the University of Rochester published a seemingly innocuous paper in the Journal of Financial Economics entitled “Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure.”

The article performed the old academic trick of creating a problem and then proposing a solution to the supposed problem that the article itself had created. The article identified the principal-agent problem as being that the shareholders are the principals of the firm—i.e., they own it and benefit from its prosperity, while the executives are agents who are hired by the principals to work on their behalf.

The principal-agent problem occurs, the article argued, because agents have an inherent incentive to optimize activities and resources for themselves rather than for their principals. Ignoring Peter Drucker’s foundational insight of 1973 that the only valid purpose of a firm is to create a customer, Jensen and Meckling argued that the singular goal of a company should be to maximize the return to shareholders.

To achieve that goal, they academics argued, the company should give executives a compelling reason to place shareholder value maximization ahead of their own nest-feathering. Unfortunately, as often happens with bad ideas that make some people a lot of money, the idea caught on and has even become the conventional wisdom. (via The Dumbest Idea In The World: Maximizing Shareholder Value )

The road to SOPA began in the mid 70s. The corporation, the creator of product, began to focus on how to maximize return on investment and how to protect said investment through IP. At the same time the internet was also emerging.

Today the internet is a catalyst for political unrest, leads to progressive changes in education, and content creators are bypassing corporations talking directly to the people interested in their product, their art. For younger generations, by which I mean generations growing up so completely comfortable with technology they have an intuitive understanding of smart phones, tablets, and the internet, there are no borders. They can connect with friends in other countries in the same way they connect with the friends they see in "real life." These internet users feel the same way about digital content, if they can communicate with their friends all over the world why can't they consume the same content. Why can't corporations figure out a way to make this happen.

Instead we get SOPA, with copyright not as a resource for content creators but as a weapon used to fight a growing open internet culture. Copyright as a resource to help creators is important, that's why Fair Use and Creative Commons exist, but so is works becoming part of the public domain.

Kevin Kelly, futurist, editor of Wired magazine and former editor of Whole Earth Catalog (of Steve Jobs "Stay hungry. Stay foolish" fame,) explains:

It is in the interest of culture to have a large and dynamic public domain. The greatest classics of Disney were all based on stories in the public domain, and Walt Disney showed how public domain ideas and characters could be leveraged by others to bring enjoyment and money. But ironically, after Walt died, the Disney corporation became the major backer of the extended copyright laws, in order to keep the very few original ideas they had — like Mickey Mouse — from going into the public domain. Also ironically, just as Disney was smothering the public domain, their own great fortunes waned because they were strangling the main source of their own creativity, which was public domain material. They were unable to generate their own new material, so they had to buy Pixar. (via What the Public Commons Is Missing )

The last episode of the the current series of Sherlock airs in the UK next Sunday. It is worth pointing out that this series would probably not exist if it wasn't for the fact that the large majority of Arthur Conan Doyle's Sherlock Holmes works are in the public domain.