20 January 2012


Enough ink has been spilled about this already by other people, and I've already written up way more than I should have about it on a message board my friends and I use.

But there is one aspect of this debate that I want to mention, and that's the tendency to reduce the question "should this legislation regarding piracy be passed?" to the question "is piracy a problem?"

There's a really destructive trend in politics for thinking like this:
1. There is a problem.
2. Something must be done.
3. X is something.
4. Therefore X must be done.
As a result, both the pro-X and anti-X crowds tend to line up and debate #1, as if determining if there is a problem, and how severe it is, is the end of the line. Relatively little attention is paid to whether X will actually work, or whether X is an appropriate, proportionate response to the problem.

By my recollection, we spent most of the HCR debate arguing about whether insurance and medical costs and bankruptcies were a problem, and didn't really bother so much with whether ObamaCare would actually solve those problems. Same deal with Dodd-Frank. Same thing with most security or gun-control legislation that follows some National Tragedy.

Take a look at Greg Mankiw's post about SOPA. His entire line of thinking deals with whether protecting intellectual property from infringement is important. That's fine, but it doesn't tell us anything about whether SOPA is a good idea.

He's graceful enough to admit he doesn't understand the technical details, which I appreciate. I don't want to pick on Mankiw too much; his is merely the first example of this problem I put my finger on. People asked him to weigh in, and he did, with caveats. But those caveats are little comfort. If I was a public figure with no zero understanding of finance, it would be irresponsible of me to weigh in on some new property and lending legislation with "Well I think foreclosures are just terrible!" Okay fine, but is this new legislation a good idea? "I'm against foreclosures!" Terrific.  Good to know.

I also want to pull out this one part of Mankiw's post:
In a free society, you don't have the freedom to steal your neighbor's property. And that should include intellectual property. Moreover, it is the function of the state to enforce those rights. We don't leave it up to civil litigation to protect property rights (although that is part of the solution). We give the state substantial powers to stop theft.
I could use that same observation to oppose SOPA.

One of the major problems I have with it is that it would remove the State from the process.* Under SOPA, someone who thinks their IP is being infringed could demand that the offending website be taken offline, processing of payments to it cease, and advertisements for it stop being placed, all within five days of the complaint. At no point is their an investigation to determine if the accusation is correct, and at no point does the accused get to step in and defend themselves. The accusation is the beginning and end.  The clock starts ticking when the accusation is made, and it doesn't stop.  That's not giving the State "substantial powers to stop theft," that's giving substantial powers to whoever in the room is most willing to fling accusations around.

(* I can't believe I just typed those words.)

Yes, we want the state to protect property. But that doesn't mean I can walk into a pawn shop, claim some goods in it are stolen property, and force the shop eeper to take them outside and burn them within the hour on my say so. I must go to the police, who go to a prosecutor, who goes to a judge, who initiates a robust, adversarial process for determining the legal status of the goods in question.

Mankiw continues:
Just as owners of tangible personal property have good cause to call for a police force and a system of criminal courts, owners of intellectual property have good cause to ask the state to stop those who would infringe on their rights.
Yes, but the legislation necessary for this already exists. This is a good argument for piracy to be illegal, but piracy is already illegal.  This is a problem we already have a solution to, and so Mankiw's claim doesn't tell us anything at all about SOPA.

This situation reminds me of much of the proposed legislation after Giffords got shot. Attempted murder is already illegal. Are crazed gunmen going to be deterred if we write specific new legislation making it extra-illegal to kill people at political rallies? But that doesn't matter, because There Is A Problem and Something Must Be Done.

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