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Annotated captions of Clay Shirky: Why SOPA is a bad idea in English

Last Modified By Time Content
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I'm going to start here.

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This is a hand-lettered sign

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that appeared in a mom and pop bakery

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in my old neighborhood in Brooklyn a few years ago.

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The store owned one of those machines

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that can print on plates of sugar.

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And kids could bring in drawings

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and have the store print a sugar plate

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for the top of their birthday cake.

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But unfortunately, one of the things kids liked to draw

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was cartoon characters.

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They liked to draw the Little Mermaid,

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they'd like to draw a smurf, they'd like to draw Micky Mouse.

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But it turns out to be illegal

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to print a child's drawing of Micky Mouse

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onto a plate of sugar.

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And it's a copyright violation.

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And policing copyright violations

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for children's birthday cakes

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was such a hassle

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that the College Bakery said,

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"You know what, we're getting out of that business.

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If you're an amateur,

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you don't have access to our machine anymore.

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If you want a printed sugar birthday cake,

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you have to use one of our prefab images --

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only for professionals."

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So there's two bills in Congress right now.

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One is called SOPA, the other is called PIPA.

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SOPA stands for the Stop Online Piracy Act.

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It's from the Senate.

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PIPA is short for PROTECTIP,

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which is itself short for

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Preventing Real Online Threats

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to Economic Creativity

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and Theft of Intellectual Property --

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because the congressional aides who name these things

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have a lot of time on their hands.

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And what SOPA and PIPA want to do

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is they want to do this.

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They want to raise the cost

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of copyright compliance

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to the point where people simply get out of the business

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of offering it as a capability to amateurs.

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Now the way they propose to do this

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is to identify sites

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that are substantially infringing on copyright --

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although how those sites are identified

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is never fully specified in the bills --

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and then they want to remove them from the domain name system.

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They want to take them out of the domain name system.

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Now the domain name system

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is the thing that turns human-readable names, like Google.com,

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into the kinds of addresses

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machines expect --

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74.125.226.212.

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Now the problem with this model of censorship,

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of identifying a site

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and then trying to remove it from the domain name system,

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is that it won't work.

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And you'd think that would be a pretty big problem for a law,

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but Congress seems not to have let that bother them too much.

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Now the reason it won't work

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is that you can still type 74.125.226.212 into the browser

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or you can make it a clickable link

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and you'll still go to Google.

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So the policing layer

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around the problem

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becomes the real threat of the act.

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Now to understand how Congress came to write a bill

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that won't accomplish its stated goals,

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but will produce a lot of pernicious side effects,

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you have to understand a little bit about the back story.

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And the back story is this:

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SOPA and PIPA, as legislation,

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were drafted largely by media companies

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that were founded in the 20th century.

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The 20th century was a great time to be a media company,

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because the thing you really had on your side was scarcity.

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If you were making a TV show,

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it didn't have to be better than all other TV shows ever made;

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it only had to be better

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than the two other shows

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that were on at the same time --

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which is a very low threshold

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of competitive difficulty.

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Which meant

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that if you fielded average content,

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you got a third of the U.S. public for free --

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tens of millions of users

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for simply doing something

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that wasn't too terrible.

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This is like having a license to print money

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and a barrel of free ink.

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But technology moved on, as technology is wont to do.

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And slowly, slowly, at the end of the 20th century,

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that scarcity started to get eroded --

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and I don't mean by digital technology;

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I mean by analog technology.

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Cassette tapes, video cassette recorders,

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even the humble Xerox machine

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created new opportunities

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for us to behave in ways

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that astonished the media business.

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Because it turned out

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we're not really couch potatoes.

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We don't really like to only consume.

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We do like to consume,

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but every time one of these new tools came along,

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it turned out we also like to produce

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and we like to share.

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And this freaked the media businesses out --

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it freaked them out every time.

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Jack Valenti, who was the head lobbyist

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for the Motion Picture Association of America,

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once likened the ferocious video cassette recorder

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to Jack the Ripper

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and poor, helpless Hollywood

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to a woman at home alone.

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That was the level of rhetoric.

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And so the media industries

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begged, insisted, demanded

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that Congress do something.

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And Congress did something.

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By the early 90s, Congress passed the law

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that changed everything.

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And that law was called the Audio Home Recording Act

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of 1992.

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What the Audio Home Recording Act of 1992 said was,

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look, if people are taping stuff off the radio

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and then making mixtapes for their friends,

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that is not a crime. That's okay.

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Taping and remixing

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and sharing with your friends is okay.

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If you make lots and lots of high quality copies and you sell them,

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that's not okay.

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But this taping business,

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fine, let it go.

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And they thought that they clarified the issue,

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because they'd set out a clear distinction

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between legal and illegal copying.

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But that wasn't what the media businesses wanted.

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They had wanted Congress

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to outlaw copying full-stop.

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So when the Audio Home Recording Act of 1992 was passed,

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the media businesses gave up on the idea

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of legal versus illegal distinctions for copying

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because it was clear

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that if Congress was acting in their framework,

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they might actually increase the rights of citizens

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to participate in our own media environment.

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So they went for plan B.

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It took them a while to formulate plan B.

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Plan B appeared in its first full-blown form

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in 1998 --

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something called the Digital Millennium Copyright Act.

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It was a complicated piece of legislation, a lot of moving parts.

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But the main thrust of the DMCA

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was that it was legal to sell you

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uncopyable digital material --

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except that there's no such things as uncopyable digital material.

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It would be, as Ed Felton once famously said,

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"Like handing out water

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that wasn't wet."

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Bits are copyable. That's what computers do.

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That is a side effect of their ordinary operation.

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So in order to fake the ability

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to sell uncopyable bits,

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the DMCA also made it legal

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to force you to use systems

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that broke the copying function of your devices.

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Every DVD player and game player

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and television and computer you brought home --

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no matter what you thought you were getting when you bought it --

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could be broken by the content industries,

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if they wanted to set that as a condition of selling you the content.

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And to make sure you didn't realize,

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or didn't enact their capabilities

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as general purpose computing devices,

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they also made it illegal

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for you to try to reset

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the copyability of that content.

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The DMCA marks the moment

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when the media industries

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gave up on the legal system

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of distinguishing between legal and illegal copying

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and simply tried to prevent copying

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through technical means.

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Now the DMCA had, and is continuing to have, a lot of complicated effects,

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but in this one domain, limiting sharing,

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it has mostly not worked.

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And the main reason it hasn't worked

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is the Internet has turned out to be far more popular and far more powerful

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than anyone imagined.

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The mixtape, the fanzine,

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that was nothing compared to what we're seeing now

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with the Internet.

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We are in a world

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where most American citizens

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over the age of 12

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share things with each other online.

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We share written things, we share images,

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we share audio, we share video.

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Some of the stuff we share is stuff we've made.

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Some of the stuff we share is stuff we've found.

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Some of the stuff we share

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is stuff we've made out of what we've found,

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and all of it horrifies those industries.

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So PIPA and SOPA

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are round two.

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But where the DMCA was surgical --

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we want to go down into your computer,

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we want to go down into your television set, down into your game machine,

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and prevent it from doing

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what they said it would do at the store --

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PIPA and SOPA are nuclear

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and they're saying, we want to go anywhere in the world

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and censor content.

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Now the mechanism, as I said, for doing this,

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is you need to take out anybody

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pointing to those IP addresses.

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You need to take them out of search engines,

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you need to take them out of online directories,

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you need to take them out of user lists.

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And because the biggest producers of content on the Internet

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are not Google and Yahoo,

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they're us,

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we're the people getting policed.

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Because in the end,

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the real threat

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to the enactment of PIPA and SOPA

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is our ability to share things with one another.

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So what PIPA and SOPA risk doing

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is taking a centuries-old legal concept,

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innocent until proven guilty,

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and reversing it --

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guilty until proven innocent.

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You can't share

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until you show us

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that you're not sharing something

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we don't like.

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Suddenly, the burden of proof for legal versus illegal

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falls affirmatively on us

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and on the services

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that might be offering us any new capabilities.

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And if it costs even a dime

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to police a user,

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that will crush a service

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with a hundred million users.

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So this is the Internet they have in mind.

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Imagine this sign everywhere --

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except imagine it doesn't say College Bakery,

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imagine it says YouTube

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and Facebook and Twitter.

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Imagine it says TED,

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because the comments can't be policed

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at any acceptable cost.

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The real effects of SOPA and PIPA

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are going to be different than the proposed effects.

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The threat, in fact,

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is this inversion of the burden of proof,

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where we suddenly

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are all treated like thieves

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at every moment we're given the freedom to create,

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to produce or to share.

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And the people who provide those capabilities to us --

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the YouTubes, the Facebooks, the Twitters and TEDs --

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are in the business

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of having to police us,

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or being on the hook for contributory infringement.

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There's two things you can do

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to help stop this --

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a simple thing and a complicated thing,

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an easy thing and a hard thing.

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The simple thing, the easy thing, is this:

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if you're an American citizen,

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call your representative, call your senator.

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When you look at

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the people who co-signed on the SOPA bill,

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people who've co-signed on PIPA,

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what you see is that they have cumulatively received

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millions and millions of dollars

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from the traditional media industries.

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You don't have millions and millions of dollars,

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but you can call your representatives,

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and you can remind them that you vote,

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and you can ask not to be treated like a thief,

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and you can suggest that you would prefer

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that the Internet not be broken.

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And if you're not an American citizen,

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you can contact American citizens that you know

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and encourage them to do the same.

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Because this seems like a national issue,

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but it is not.

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These industries will not be content

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with breaking our Internet.

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If they break it, they will break it for everybody.

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That's the easy thing.

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That's the simple thing.

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The hard thing is this:

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get ready, because more is coming.

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SOPA is simply a reversion of COICA,

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which was purposed last year, which did not pass.

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And all of this goes back

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to the failure of the DMCA

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to disallow sharing as a technical means.

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And the DMCA goes back to the Audio Home Recording Act,

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which horrified those industries.

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Because the whole business

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of actually suggesting that someone is breaking the law

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and then gathering evidence and proving that,

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that turns out to be really inconvenient.

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"We'd prefer not to do that,"

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says the content industries.

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And what they want is not to have to do that.

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They don't want legal distinctions

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between legal and illegal sharing.

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They just want the sharing to go away.

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PIPA and SOPA are not oddities, they're not anomalies,

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they're not events.

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They're the next turn of this particular screw,

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which has been going on 20 years now.

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And if we defeat these, as I hope we do,

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more is coming.

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Because until we convince Congress

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that the way to deal with copyright violation

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is the way copyright violation was dealt with with Napster, with YouTube,

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which is to have a trial with all the presentation of evidence

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and the hashing out of facts and the assessment of remedies

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that goes on in democratic societies.

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That's the way to handle this.

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In the meantime,

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the hard thing to do is to be ready.

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Because that's the real message of PIPA and SOPA.

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Time Warner has called

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and they want us all back on the couch,

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just consuming --

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not producing, not sharing --

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and we should say, "No."

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Thank you.

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(Applause)