Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet

by David Segal, Patrick Ruffini

  FOR ME, IT ALL STARTED WITH A PHONE CALL

  AARON SWARTZ

  Aaron Swartz was a writer, a technologist, and an Internet freedom and social justice activist. The essay below is adapted from a talk Aaron gave in conjunction with the software consulting firm ThoughtWorks, where he worked for most of 2012.

  For me, it all started with a phone call.

  It was way back in September 2010, when I got a phone call from my friend Peter.

  “Aaron,” he said. “There’s an amazing bill you have to take a look at.”

  “What is it?” I said.

  “It’s called COICA. The Combatting Online Infringement and Counterfeiting Act.”

  “Oh, Peter,” I said. “I don’t care about copyright law. Maybe you’re right, maybe Hollywood is right, but either way is it really such a big deal? I’m not going to waste my life fighting over a little issue like copyright. Health care. Financial reform. Those are the sorts of issues I work on. Not something obscure like copyright.”

  I could hear Peter grumbling. “Look, I don’t have time to argue with you. But it doesn’t matter for right now. Because this isn’t a bill about copyright.”

  “It’s not?”

  “No, it’s a bill about freedom of speech.” Now I was listening.

  Peter explained what all of you have probably long since learned. That this bill would let the government devise a list of websites that Americans weren’t allowed to visit. Over the next day, I came up with lots of ways to try to explain this to people. I said it was a Great Firewall of America. I said it was an Internet blacklist. I said it was online censorship. But I think it’s worth taking a step back, putting aside the rhetoric, and thinking about just how radical this bill really was.

  Yes, there are lots of times where the government makes rules about speech. If you slander a private figure. If you buy a television ad that lies to people. If your wild party plays booming music all night. In all these cases, the government can stop you.

  But this was something radically different. It wasn’t that the government went to people and asked them to take down particular material that was illegal. It shut down whole websites. Essentially, it stopped Americans from communicating entirely with certain other groups.

  There’s nothing really like it in U.S. law. If you play loud music all night, the government doesn’t slap you with an order requiring you play mute for the next couple weeks. They don’t say nobody can make any more noise inside your house. There’s a specific complaint, which they ask you to specifically remedy, and then your life goes on.

  The closest I can find is a case where the government was at war with an adult book store. The place kept selling porn, the government kept getting it declared illegal, and then, frustrated, they decided to shut the whole bookstore down. But even that was declared unconstitutional, a violation of the First Amendment.

  You might say: surely COICA would get declared unconstitutional too!

  But I knew that if the Supreme Court had one blind spot around the First Amendment, more than anything else—more than slander or libel; more than pornography; more, even, than child pornography—it was copyright. When it came to copyright it was like the part of the justices’ brains shut off and they totally forgot about the First Amendment. You got the sense that, deep down, they didn’t even think the First Amendment applied when copyright was at issue.

  Which means that if you wanted to censor the Internet, if you wanted to come up with a way the government could shut down access to particular websites—this bill might just be the only way to do it. If you said it was about pornography, it’d probably get overturned by the courts—just like that adult bookstore case. But by claiming it was about copyright, it might just sneak through.

  And that was terrifying, because copyright was absolutely everywhere. If you wanted to shut down WikiLeaks, it’d be a bit of a stretch to claim you were doing it because they were distributing child pornography. But it wouldn’t be hard at all to claim they were violating copyright.

  Because everything is copyrighted. These words are copyrighted. And it’s so easy to accidentally copy something. So easy, in fact, that we found the leading Republican supporter of COICA, Orrin Hatch, had illegally copied a bunch of code into his own Senate website. If even Orrin Hatch’s Senate website was found to be violating copyright law, what’s the chance they wouldn’t be able to pin something on any of us?

  This bill, COICA, was introduced on September 20, 2010, a Monday. And in the press release heralding the introduction of this bill, way at the bottom, it said it was scheduled for a vote on September 23—just three days later.

  And while of course there had to be a vote—you can’t pass a bill without a vote—the results of that vote were a foregone conclusion. Because if you looked at the introduction of the law, it wasn’t just introduced by one rogue, eccentric member of Congress. It was introduced by the chair of the committee—and co-sponsored by nearly all the other members—Republicans and Democrats. So there would be a vote, but it wouldn’t be much of a surprise, because nearly everyone who was voting had signed their name to the bill—before it was even introduced.

  I can’t stress enough how unusual this is. This is emphatically not how Congress works. I’m not talking about how Congress should work, the way you see on Schoolhouse Rock. I mean the way it really works. I think we all know that Congress is a dead zone of deadlock and dysfunction. There are months of debates and horse-trading and hearings and stall tactics.

  I mean, here’s how it happens:

  First, you announce that you’re going to hold hearings on a particular problem. Then you bring a bunch of experts to Congress for days of testimony on the issue. Then you propose a possible solution and bring the experts back for their thoughts on that. But other members have different ideas, so they propose different solutions.

  Then you spend a bunch of time debating and trying to rally other members to your side. Finally you spend hours talking one-on-one with the combatants to come up with some sort of compromise, which you painfully hash out in endless meetings.

  And when it’s finally done, you take that, and go through it, line by line, in public, to see if anyone else has any objections or wants to suggest any changes.

  It’s a painful, arduous process. You don’t just introduce a bill on Monday and pass it unanimously a couple days later! That just doesn’t happen! But this time, it was going to happen.

  And it wasn’t because there were no disagreements on the issue. There are always disagreements. Some senators thought the bill was much too weak and needed to be stronger. As it was introduced, the bill only allowed the government to shut down websites—these senators wanted any company in the world to have the power to get a website shut down. Other senators thought it was a drop too strong.

  But somehow, in the kind of thing you really never see in Washington, they’d manage to put all their personal differences aside and come together to support one bill that they were all persuaded they could live with. A bill that would censor the Internet.

  Whoever was behind this was good.

  Now the typical way you make good things happen in Washington is you find a bunch of wealthy companies who agree with you. Social Security didn’t get passed because some brave politicians decided that their good conscience couldn’t possibly let old people die, starving, in the streets. I mean, are you kidding me? No, Social Security got passed because John D. Rockefeller was sick of having to take money out of his profits to pay for his worker’s pension funds. Why do that when you can just let the government take the money from the workers?

  Now my point is not that Social Security is a bad thing—I think it’s fantastic—it’s just that the way you get government to do fantastic things is to find a big company that wants to back them.

  The problem is, of course, that big companies aren’t really huge fans of civil liberties. You know, it’s not that they’re against them—it’s just that there’s not that much money in it.


  Now if you’ve been reading the press, you probably didn’t hear this story. As Hollywood has been telling it, the great good copyright bill was stopped by the evil Internet companies who make millions off of copyright infringement.

  But it really wasn’t true. I mean, I was in on the meetings with these Internet companies. And if all their profits depended on copyright infringement, I can tell you they would have put a hell of a lot more money into changing copyright law. The fact is that the big Internet companies would do just fine if this bill passed. I mean, they wouldn’t be happy about it, but I doubt it would even cause a noticeable dip in their stock price. They were against it, like the rest of us, on grounds of principle—but principle doesn’t have a lot of money to spend on lobbyists.

  So they were practical about it. “Look,” they said. “This bill is going to pass. It’s going to pass unanimously. As much as we try, this is not a train we will be able to stop. So we’re not going to support it—who could support it?—but in opposition, let’s at least try to make it better.”

  That was the strategy: lobby to make the bill better. They had lists of little changes that would make the bill less obnoxious, or less expensive for them, or whatever—but the fact remained, at the end of the day, it was going to censor the Internet. And there was nothing we could do to stop it.

  So I did what you always do when you’re a little guy, facing a terrible future, with long odds and little hope of success: I started an online petition.

  I called my friends and we stayed up all night setting up a website for a new group, Demand Progress, with an online petition opposing this noxious bill. And I sent it to a few friends and posted it on some websites.

  Now I’ve actually done a few online petitions before. I’ve worked at some of the biggest groups in the world that do online petitions. I’ve written a ton of them and I’ve seen even more. But I’ve never seen anything like this.

  Starting from literally nothing, we went to ten thousand signers, then a hundred thousand signers, then two hundred thousand, then three hundred thousand. And it wasn’t just signing a name—we asked those people to call into Congress, to call urgently. There was a vote coming up this week—in just a couple days. We had to stop it!

  The original Demand Progress petition against the “Internet Blacklist Bill” from the fall of 2010. This legislation eventually morphed into PIPA, and then SOPA.

  And at the same time we told the press about it—and about this incredible online petition. And we met with the staff of members of Congress and pleaded with them to withdraw their support for this bill. It was amazing, it was huge, the power of the Internet rose up in force against this bill. And then it passed the committee unanimously.

  Now, to be fair, several of the members gave speeches before casting their vote. And in their speeches they said their office had been overwhelmed with comments about the First Amendment aspects of the bill, comments that had them very worried. So worried, in fact, that they weren’t sure they supported the bill. But even though they didn’t support it, they were going to vote for it anyway, because they needed to keep the process moving and they were sure that any problems would be fixed later.

  (Again, I ask you: does this sound like Washington, D.C. to you? Since when do members of Congress vote for things they oppose to “keep the process moving”? Whoever was behind this was good.)

  And then, the process suddenly stopped. Sen. Ron Wyden, the Democrat from Oregon, put a hold on the bill. Calling it a “bunker-busting cluster bomb” aimed at the Internet, he announced he would not allow it to pass without changes.

  Now, as you may know, a single senator cannot actually stop a bill by themself. But they can delay it. By objecting to a bill, they can demand that Congress spend a bunch of time debating it before getting it passed. And Sen. Wyden did—he bought us time. A lot of time, as it turned out—his delay held all the way through the end of that session of Congress, so that when the bill came back it had to start all over again.

  And since they were starting all over again, they decided they might as well give it a new name. And that’s when it began being called PIPA and eventually SOPA.

  THE HISTORY OF THE COPYRIGHT WARS

  CORY DOCTOROW

  Cory Doctorow (craphound.com) is a science fiction novelist, blogger, and technology activist. He is the co-editor of the popular weblog Boing Boing (boingboing.net), and a contributor to The Guardian, the New York Times, Publishers Weekly, Wired, and many other newspapers, magazines, and websites. He was formerly Director of European Affairs for the Electronic Frontier Foundation (eff.org), a non-profit civil liberties group that defends freedom in technology law, policy, standards, and treaties. He holds an honorary doctorate in computer science from the Open University (UK), where he is a Visiting Senior Lecturer; in 2007, he served as the Fulbright Chair at the Annenberg Center for Public Diplomacy at the University of Southern California. This essay and one that appears later in this book are adapted from Doctorow’s forthcoming book, Information Doesn’t Want to Be Free.

  The copyright wars are nothing new. Five hundred years ago, Europe convulsed in war over who could access the Bible and under what circumstances, battling over whether the uncertain benefits of universal access to scripture were worth more than the undeniable accomplishments and majesty of the incumbent religious institution.

  Things went on in this vein for quite some time.

  Eventually, the state stepped in, aiming to mediate between the different interests surrounding the ever-expanding print industry—hence, copyright, though for varied specific reasons and rationales. The 1710 English Statute of Anne set out to protect publishers who invested in producing works. The framers of the U.S. Constitution included a clause “promoting the useful arts and sciences” by granting monopolies of limited time to authors. The Berne Convention (created by Victor Hugo in the 1880s) talked about the “moral right” of authors to control their works. The UN Declaration of Human Rights has a section on “protection of the material and moral interests” in your “scientific, literary or artistic productions.”

  But persistent throughout was the battle between technology and the culture industry. At the turn of the 20th century, composers called performers pirates and insisted that recording music was a form of theft. John Philip Sousa, the great American composer, fought the record player: “Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cords will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

  Thirty years later, the same record producers, now dominant in the music industry, turned to fight the emergent radio broadcasters, who had the audacity to argue that they should be able to play records over the air. The record industry was furious and tried to block radio from playing records without explicit permission from the artists. Their argument was, “When we used technology to appropriate and further commercialize the works of composers, that was progress. When these upstart broadcasters do it to our records, that’s piracy.”

  Flash forward another forty years: along came cable TV, which appropriated the broadcasts that were sent over the air and retransmitted them over cables. The broadcasters argued (unsuccessfully) that this was a form of piracy and that the law should put an immediate halt to it. Their argument? The familiar one: “When we did it, it was progress. When they do it to us, that’s piracy.”

  And then only a few short years later, in 1976, Sony’s VCR arrived, instigating a landmark lawsuit from the cable operators and the studios. The eight-year legal battle, concluding with the 1984 Supreme Court “Betamax” ruling, featured anti-VCR briefs that fundamentally went like this: “When we took the broadcasts without permission, that was progress. Now that someone’s recording our cable signals without permission, that’s piracy.”

  Sony won, and fifteen years later, it was one of the first companies to get in line to sue Internet companies that were making it easier to copy music and vide
os online. And so the copyright wars continue.

  Internet advocacy group Fight for the Future formed during the heat of the PIPA battle and quickly produced a web video to educate Internet users about the bill. Their widely watched video noted the history of copyright holders and industries suing to undermine disruptive new technologies. The screencap above captures a scene in the video reminding viewers about past lawsuits against both Betamax VCR’s and MP3 players.

  Historically, copyright has worked as a form of industry regulation. The rule of thumb that copyright uses to figure out if you’re part of the copyright industry is whether you are making copies. This made perfect sense in the past century. Anyone who was pressing a record had a million-dollar record factory. Anyone printing a book had a printing press, a bunch of skilled printers, and a building to house the whole operation.

  Equating copying with industrial activity made sense when copying was hard. The problem is that over time, computers have made copying exponentially easier and cheaper. Before the Internet, it was very difficult for the state or rights holders to discover that copies—possible offenses—were being made. Therefore, there was almost no pressure on intermediaries to police copyright on the behalf of the rights holders. No one asked the companies that sold school notebooks to ensure that fanfic was never scribbled in their pages. No one asked art teachers to police their students to ensure that they were staying on the right side of copyright in their figure-drawing classes.

  But all this changes in an era of Internet-scale intermediaries, networked communities, and automated notice-and-takedown procedures. Flickr or Facebook becomes the preferred way for kids to share their drawings with one another. Fanfic.net becomes the preferred place for fanfic authors to share their work with one another. Technically, the companies providing this service are “making money off copyright infringement,” but no more than the mall food court near the local high school makes a few bucks off the students who gather there to show off their infringing art while eating lunch.