from the the-fight-continues dept
The SOPA blackouts of 2012 marked an important milestone in the power of online activism to influence policy at the highest levels, but it would be a mistake to view it as either the start or the end of the struggle it represents. It is still among the most strikingly-effective examples to date, but it built on years of policy work that continues to this day.
Online activism is notoriously poorly preserved, and it rarely produces the salient visuals of offline protests. Massive crowds of people taking part in an online action can’t be photographed extending down city blocks; no hand-painted signs with powerful slogans or sea of faces with resolute determination will become the iconic image representing the moment.
As a result, it’s easier to forget the early Web blackouts of 1996 protesting the passage of the Communications Decency Act, or the Gray Tuesday event of copyright civil disobedience in 2004, to name a few I spoke about the legacy of these three events, taken together, at re:publica 2014).
The SOPA protests provided a counter-example, in part, both because of the memorable visuals of the online “blackouts” and the in-person events coordinated in cities around the country. Images of Aaron Swartz, who had been a key organizer against the bill, addressing crowds at a New York rally illustrated articles about the online protests.
As important as the unprecedented scale of the online actions was the reception by the press, the public, and the political sphere. The SOPA blackout represented a moment of online grassroots activism demanding to be taken seriously, and getting the coverage and reception it deserved. Every major news outlet reported on the protests and, as an indicator of its prominence, each of the candidates vying for the Republican nomination for president were asked onstage about SOPA at a January 19 debate — surely a first for a copyright proposal. Their criticism was ample evidence of the cracks in the bill’s inevitability.
One long-term effect of the SOPA blackouts: it has seemed to meaningfully shift, perhaps permanently, the policy environment around copyright in particular. In 2011 and early 2012, SOPA appeared to be inevitable, in part because earlier industry-favored copyright proposals had both passed with near unanimity and withstood challenges that laid their irrationality bare.
After SOPA’s flame-out, it no longer seems like copyright law is something that can be hammered out by industry representatives behind closed doors (admittedly, this shift has corresponded with the rise of tech companies as lobbying giants with a different copyright agenda than the existing players, which has surely played a role). As just one example: In 2011, SOPA was inevitable, but so was an eventual expansion to the Copyright Term Extension Act, continuing the public domain freeze that had been running since 1998. Of course, that never came to pass, and the public domain has grown on January 1 every year since 2019.
That change wasn’t the result of the “war being won” — far from it. Increasing the costs of pushing through copyright policy has mostly shifted the battlegrounds in two major ways.
First, big changes to how copyright gets enforced in the United States happen through private agreements with online platforms. YouTube’s ContentID system already existed in 2012, but the importance of that tool and others like it has increased immensely in the years since. The result is a landscape of platforms that do what Professor Annemarie Bridy has called “DMCA-plus enforcement,” extending the effective contours of copyright without a change in the law.
If there is an upside to this arrangement, it has been that actual copyright law discussions have had the heat turned down slightly, and may have become less of a fact-free zone. It’s hard to play out the counterfactual, but I think the right-to-repair movement and the Music Modernization Act have been beneficiaries of this change.
Second, and perhaps more nefariously, copyright proposals that had been proxies for regulating online speech more broadly have migrated to other areas of the law. Most notably in the past decade, these attacks have focused on section 230 of the Communications Decency Act. In some cases, the overlap is almost comical, like when op-eds pushing for changes cite the wrong law, and the New York Times has to issue a correction. In other moments the effect is more depressing. Watching FOSTA/SESTA skate through to passage, despite all the organizing against it, was a low point for online speech.
In my work with journalists today, copyright continues to be a chokepoint for silencing unfavorable reporting, but it is only one arrow in the quiver of would-be censors. We see police officers attempting to limit the distribution of their statements by playing mainstream music in the background, or right-wing activists issuing takedowns for newsworthy photographs documenting their associations, but we also see frivolous SLAPP suits by elected officials, a dramatic rise in arrests and assaults on journalists, and existential legal threats to entire outlets.
The overwhelming majority of people who are passionate about freedom of expression and access to knowledge online aren’t paid to work on those issues. I have been very lucky that, since 2011 I have been able to focus on these important topics as my job, first at the Electronic Frontier Foundation as a copyright activist, and now as the director of advocacy at the Freedom of the Press Foundation. SOPA was among the very first issues I worked on in this field, and I’ve carried its lessons through the decade of activism that I’ve been fortunate enough to participate in.
Parker Higgins is the director of advocacy at the Freedom of the Press Foundation. From 2011 to 2017, he worked on the activism team at the Electronic Frontier Foundation on copyright and speech issues.
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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