Copyright Lawmaking and Public Choice: From Legislative Battles to Private Ordering

Abstract

On January 18th, 2012, the Web went dark in the largest online protest in history. Two anti-piracy Bills – The Stop Online Piracy Act (SOPA) and The Protect IP Act (PIPA) – attracted waves of opposition from the Internet community, which culminated on January 18th in an unprecedented 24-hour Web strike, followed by a decision to shelve the Bills indefinitely. The tech industries’ recent rise to be one of the most influential lobbies in copyright legislative arena, and social networks’ ability to lower mobilization costs of individual users set the foundation for the overwhelming accomplishment of the SOPA/PIPA uprising. An established line of commentary has employed public choice theory to explain the perspective that corporate copyright holders have had disproportionate influence on copyright lawmaking to the detriment of the general public. Following the successful opposition to the antipiracy bills, voices arguing a revolution in copyright legislation and policymaking began speaking out. Contrary to those voices, this Article argues that since the laudable display of the power of the public in the SOPA/PIPA case was of a unique context, it is too soon to part ways with the public choice model of copyright lawmaking. The public should be looked at as a ‘sleeping giant’ whose potential awakening, as paramount as it could be, is merely a potential. Furthermore, this Article claims that even if the public could mobilize into action more frequently, previous resort to private ordering in the form of cross-industry partnerships, which are often kept away from the public eye, would regularly impede public opposition. Cross-industry partnerships, while little-discussed in legal commentary, make perfect economic sense for corporate players, and they can be as influential and effective as public legislation, without the fear of a prospective public backlash.

Keywords: SOPA, PIPA, Legislation, Copyright, Public Choice Theory, Private Ordering, UGC