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Posted on Techdirt - 21 January 2022 @ 09:37am

Some Lessons Learned From The Fight Against SOPA/PIPA: Beware Crony Capitalism

Crony capitalism is alive and well, and can only be contained (if at all) by sustained popular action. SOPA/PIPA were broadly bipartisan bills designed to adapt techniques developed from the financial arm of the war on terror to pad the pockets of one of the most powerful business lobbies in Washington DC.

The bills proposed to create an extrajudicial process, invoked and driven either directly by industry lawyers or by their revolving door colleagues in the White House (the MPA and RIAA leveraged bipartisan neoliberalism), which would trigger obligations, levied with all the fine precision of a sledge hammer, for payment systems providers and advertising delivery systems to cut off whole sites that the industry lawyers alleged were hosting copyrighted made available without a license or privilege. 

It was, in other words, a travesty to anything remotely resembling a balanced, expression-respecting version of copyright law. None of this troubled the bipartisan alliance of sage legislators who supported the bill—too ignorant to study its details; too captivated by the ideology of private property; or too corrupt to care.

The bill embodied the kind of public-private-partnership that Niva Elkin Koren and Michael Birnhack had warned about a decade earlier: the Invisible Handshake. An alliance between states and companies handing off to each other functions that neither could do on its own, with companies harnessing the state to do their work in SOPA/PIPA, in this case, just as other companies were collecting data for the state in ways disclosed by Edward Snowden not long after.

For those who now yearn for bipartisan regulation of content moderation, at a time with Mark Zuckerberg is asking for regulation—be careful what you wish for. If it really constrains business, it won’t be broadly bipartisan. It will be hard fought and narrowly won, and only with hard, sustained political mobilization.

Networked mobilization has played an important democratizing role, using the same affordances that also undergird radicalization. How quaint to remember that ten years ago people still thought that copyright policy was a big enough deal to go out on the streets in the US and Europe, carrying signs like Stop ACTA!

In this world of ours, when the US seems to be teetering on the edge of an authoritarian takeover, at least for a while or in some major states; in which hundreds of thousands went out on the streets to protest police killings of Black men and women; that seems like a time long, long ago.

But the core lesson was that online mobilization, coupled with real-world protests, can and does work. It’s not just armchair activism; or at least it isn’t if it wants to be effective. As Zeynep Tufekci argued effectively, what we’ve learned in the past decade is that mobilization on social media is far from a silver bullet, and has real costs alongside benefits; but it is a source of enormous power.

As we read, day in day out, about online mobilization of the far right, disinformation and propaganda, and imagine new ways for networks to police their users’ radical politics, let’s not forget that radically decentralized protest has worked across the political spectrum, pursuing liberatory and oppressive projects alike. Whatever powers of suppression we invest in the parties to the Invisible Handshake will be at least as available to would-be authoritarians are they are to would-be egalitarians, and likely more so because of the shamelessness of the former.

Democratically governed critical infrastructures are central to the power of a citizens’ strike. On January 18, 2012, ProPublica recorded 80 supporters and 31 opponents of SOPA/PIPA. On January 19, the ratio in favor had shifted from 80:31 to 65:101. By January 20, the ratio would continue to go against passage of the bills to 55:205.

What happened on January 18 was the Internet Blackout, when thousands of sites, including Wikipedia and Reddit, blacked out. What happened was a massive citizens strike, but it was centrally anchored around democratically governed critical infrastructures, none more critical than Wikipedia.

Yes, I know, Wikipedia is far from a utopian democratic public sphere. And yet, here was the world’s most important knowledge utility shut down following extensive public debate, in which over 2,000 Wikipedia editors participated, because the community reached a conclusion to shut it down to stop a grave threat to the core values of the community.

Other than Wikipedia itself, there are no other democratically produced and governed pieces of Internet infrastructure on a global scale. There continue to be efforts at platform and open cooperatives, and periodically open source alternative platforms are developed. But we all know that more and more of our online infrastructures are fully commoditized and controlled centrally.

That’s why the protests of employees of those companies have become such a critical dimension of democratic resistance. But increasingly internet activism of this type is limited to consumer boycotts or ethical consumption, which usually garners more symbolic support than actual behavioral change. With the overwhelming corporatization and enclosure of all levels of the infrastructure, we are losing a critical base of power for democratic accountability that can be based outside of the twin pillars of crony capitalism.

Yochai Benkler is the Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School, and faculty co-director of the Berkman Klein Center for Internet and Society at Harvard University. 

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we’ll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

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