Wednesday was an odd day. I opened up my computer and tried to look something up on Wikipedia—I needed to know whether Rabbi Isaac Alfasi, the greatest rabbi of eleventh century Morocco and Spain, was born in 1003 or 1013—and it wasn’t there. This was very serious. How could it not be there? It’s always there. Obviously, I understand the universe suffers various glitches and hitches on a daily basis. But that Wikipedia, the source of all knowledge, could somehow be absent felt far too disorienting to be waved away as a mere hiccup in the matrix. But where was it? I looked again…and this time I noticed that the screen was more black than blank. And then, as the words formed on my screen, I finally got the point: Wikipedia had intentionally gone dark for a day to protest a bill currently before Congress. Later in the day, I tried to google some information that I would ordinarily have looked up in Wikipedia and found that google was, if not actually dead, than at least in mourning: it was wearing a black band intended, so I soon learned, to indicate its deep sadness regarding the same bill that Wikipedia temporarily stopped existing to protest.
I have to say that they both got my attention. The legislation the powerhouses of the ‘net have gone to war against is actually two different bills, the one before the House called SOPA, which stands for the Stop Online Piracy Act, and the one before the Senate called the Protect I.P. Act. At first, it seemed like an odd thing to fight: surely the masters of Wikipedia and Google aren’t in favor of online piracy! But the more I read, the more I began to understand about what this is all about. Just a few weeks ago, these bills were considered obscure no-brainers, the kind that Congress would pass easily because it was hard to imagine why anyone would vote against them. The big “old school” entertainment industry powerhouses, led in part by the Walt Disney Company, were strongly in favor of legislation being enacted that would protect them from off-shore internet-based companies that distributed their private property for free or almost for free to their own clients via the internet. And, indeed, this is what really happens out there: companies that produce movies, books, music, even television shows, in the United States and sell them via the traditional media outlets to consumers have suddenly found themselves facing competition, if that’s the right word for it, from internet companies located well beyond the normal reach of American justice, who simply post the material for free (or not for free) on their websites without paying anything at all for the right, let alone royalties to the actual owners of the purloined property.
That part, I know all about. If you surf around the ‘net for long enough, you can easily find sites featuring Hollywood movies for download that are still in the theaters here. I found a site the other day quite accidentally that was offering a download of over 1000 books for my Kindle, including (the ad said) the entire New York Times bestseller list, for a fee less than the cost of almost any one of those books on the Times’ list. Nor is this only about intellectual property rights: the Motion Picture Association of America estimated the other day that this kind of off-shore piracy costs the American economy something like 100,000 jobs per year.
Clearly, the movie industry is still vastly profitable. But that’s hardly the point: the fact that a company is doing well doesn’t grant competitors the right to steal its product and sell it themselves, let alone give it away.
On the other hand, the government isn’t entirely innocent of wrongdoing: it has long conspired with readers to deny authors their royalties by buying up popular books and then simply letting members of the public read them for free via the public library system. (In other countries, such as the U.K. or Canada, authors are compensated for lost revenue due to library purchases, but not in the United States.) Still, that the government, even if its own hands aren’t entirely clean, wishes to address the problem of on-line piracy, who could be opposed?
Apparently a lot of people! The way to deal with these on-line pirates, apparently, is to make them undiscoverable by keeping them from appearing in the results when people use the most popular search engines to search for things like “free movies” or “free books,” or things like that. Instead, the search engines could then be made to direct people looking, say, to download a book or a movie, to the actual owner of the property rather than to a rogue operation that will sell what it does not actually own for a fee of its own devising. On top of that, the bills propose that the owners of intellectual property could then have payment companies like Visa or MasterCard refuse to do business with companies that are accused of internet piracy. The problem with all of this is that it means that that internet will become just a bit less like the Wild West and just a bit more like an actual place of business. Censorship is also part of the discussion: the single issue that appears to have aroused most opponents of both bills to action is the concept of censoring the ‘net in a way that could throttle its creativity by making it more like an old-style bookstore, albeit one that doesn’t exist in real space, and less like a freewheeling circus of creativity, artistry, and industry.
I myself see the issue from both sides. Clearly, I am not in favor of people stealing other people’s work and selling it as though they owned it themselves. But I also do believe that when the history—or at least the intellectual history—of human civilization is finally written one day by some thoughtful scholar from a different planet, the invention of the ‘net will take its place next to the invention of moveable type as one of the quantum leaps forward humanity will have made on its way to wherever it is humanity is going. Even though I wrote my dissertation by hand and then typed it on an IBM Selectric typewriter (which unimaginable task involved typing at least a hundred pages of Hebrew backwards since the typing ball only moved from left to right and couldn’t be told otherwise), I cannot imagine what it would mean to be an author today without the internet to rely on for information of every imaginable variety. Keeping people from stealing from other people is an excellent idea, therefore. But I also see the point of not regulating the ‘net out of existence, and part of its culture, as evolved to date at any rate, has to do with the freedom to access unparalleled amounts of information precisely because someone else has already posted that information…somewhere. So the challenge is to cure the disease without killing the patient. In this context, what that means is that Congress is entirely right to want to stop piracy. Who isn’t opposed to that? But we still have to move ahead carefully and judiciously so that the culture of the ‘net itself is enhanced, not degraded, by the government’s efforts to prevent theft.
The traditional Jewish attitude towards intellectual property is that it can neither be owned nor stolen. Ein baalut l’chokhmah is the quasi-traditional formulation: “Knowledge cannot be owned.” What that meant traditionally was that ideas couldn’t be considered personal property. As a result, stealing a book is a crime in a way that stealing an idea found in that book (i.e., and passing it off as your own) simply is not. Furthermore, in classical Jewish law, although all theft is considered wrong, only consequential theft is considered an actionable offense: stealing someone’s used coffee grounds is perhaps morally wrong (in that all theft is wrong), but in that the purloined substance is deemed to have no commercial value it is not considered an actual crime for which someone could be tried and convicted. That was then, however, and this is now: one of the challenges Jewish jurists are going to have to face, and have already begun to face, as we move further into the information age is how to revise laws that were developed in a setting in which the notion of knowledge without a physical medium was limited to the thoughts in one’s head. How the ancient rabbis would have responded to a world in which it is possible to encode thousands of books on a single disk, or in which it is possible for the iTunes store to have sold ten billion songs without any medium at all—not records, not CDs, not tapes, not any real thing at all, just the music as it exists in some binary code that has no discernible physical reality at all—how they would have processed that thought is impossible to imagine.
Or rather, not so impossible: they would have supposed whomever was telling them about iTunes was kidding. Then, when they realized it was true, they would have been looking around for the mashiach. Even to me, much of what we routinely do today seems almost unbelievable. (I subscribe, for example, to an on-line electronic Jewish library that makes available to me a full rabbinic library that would take tens of thousands of dollars to acquire, supposing you could acquire all the volumes present, but which is available to me with no physical medium at all for all of $50 a year.) So the googloids are right: we have something indescribably precious in our hands and we mustn’t strangle it. But surely that doesn’t mean letting thieves steal as they will either. My sense is that the Wild West wasn’t anywhere near as much fun as it seems to have been in the movies. Especially, if you were the one getting shook down by the bad guys before the sheriff and his posse managed to arrive….