Here is the first sentence from a news story about what’s
going on in Washington: “California’s two most prominent and powerful
industries — Silicon Valley and Hollywood — are at war in Washington.”
That sounds about right, given the recent turn of events
over the Protect Intellectual Property Act (PIPA) and the Stop Online Piracy
Act (SOPA), both of which are now more than likely gone from the legislative
calendar for this year.
After all, the Internet community is basking in the newfound
adulation as a result of the apparent defeat of the dreaded PIPA and SOPA. Commentators
are talking about the rise of the influence of the Internet in Washington and
watershed moments. Jan. 24 was
supposed to have been the day on which the Senate would have voted whether to
proceed with debate on PIPA. Because of
the widespread opposition to PIPA, the
vote was cancelled, and it was no certain thing the legislation would have
That first sentence to that news story was published on
Sept. 24, 2002, which is why it’s time to cut the Internet community’s victory
It is certain that the normal Washington powers that be
suffered an embarrassing defeat. They
didn’t see it coming as the wave crested over Washington, and they weren’t
particularly gracious in defeat. Indeed,
MPAA Chairman (and former U.S. Senator) Christopher Dodd, in remarks he may
wish he could “revise and extend” in the tradition of editing the Congressional
Record, sounded more like a churlish Godfather than a diplomatic trade
Dodd now famously told Fox News, “Those who count on quote ‘Hollywood’ for support need to understand
that this industry is watching very carefully who’s going to stand up for them
when their job is at stake. Don’t ask me to write a check for you when you
think your job is at risk and then don’t pay any attention to me when my job is
weren’t the smartest remarks made during the debate, but they were the ones
that consistently rang true. After all,
power in Washington is used to exercising power, absent some unusual
event. It’s sort of like Newton’s First
Law of Motion, “a body in motion will stay in motion unless acted upon by an
outside force,” as applied to D.C.
Blackout Day and related activities were an “outside force,” all right,
but was it the “watershed” moment it’s being portrayed?
In the short
term, SOPA and PIPA were stopped, perhaps for this year, as a result of
dedicated activities on a number of fronts from a number of angles. Inside Washington, groups like Public
Knowledge worked to combat SOPA, PIPA and its predecessor, the Combating Online
Infringements and Counterfeits Act (COICA).
Progressives and conservatives, business and non-profits came
together. Outside of Washington, online
organizers also got out the word about the raft of terrible bills, culminating
in the Blackout, which got the attention it deserved from Congress, along with
millions of signatures on petitions and tens of thousands of calls and visits
to Congressional offices.
presenting itself, however, is how, or even whether, that level of effort can
be sustained – particularly the ultimate event. And it will need to be sustained, if history
is any guide.
Millennium Copyright Act was passed in 1998, including the notice-and-takedown provisions and safe harbors that have worked well even today. It wasn’t long before the
discussion started about how the law was out of date. So in 2002, the first of a seemingly endless series of
bills popped up, the “Consumer Broadband and Digital
Television Act of 2002,” which took a stab at trying to prevent digital
distribution by requiring protection against copying in any device that could
access copyrighted digital works, including the “broadcast flag” which would
have limited recording of over-the-air broadcasting. The 2002 news story was about the Hollings
bill. Here’s a good short history of some of the bills. There are lots.
(In a case brought by Public
Knowledge and others, the federal appellate court in Washington threw out the
“broadcast flag” as implemented by the Federal Communications Commission.)
In 2004, there was the “The Inducing
Infringement of Copyrights Act of 2004,” which contended that certain
technologies were tantamount to “inducing” infringement. Public Knowledge and others criticized the
bills for, among other things, targeting technology rather than behavior. Also in 2004, the “Protecting
Intellectual Rights Against Theft and Expropriation (PIRATE) Act” passed the
Senate, allowing the entertainment industry to use the Justice Department as
its private law firm to enforce copyright law in civil, as opposed to criminal,
cases. PIRATE was one of eight
intellectual property bills grouped into one omnibus that year alone.
That package didn’t pass, but the
Senate kept trying and by 2007 came up with a winner in the Prioritizing Resources and Organization for
Intellectual Property Act of 2008 (Pro-IP Act)
which brought back the DoJ as civil lawyer meme and also had harsher allowances
for seizure of equipment, like computers, if there was suspected
infringement. It was signed into law on
Oct. 13, 2008. Industry leaders lauded
the bill, saying it would create thousands of jobs and even help curb
And here we are again, starting
in September, 2010, with the introduction of COICA, followed by
its progeny, PIPA and SOPA last year.
So now you
see why the victory laps need to be cut short.
There are only so many times that an event of that magnitude can be
organized, only so many times that the extraordinary amount of public outrage
can be harnessed. On the other hand,
there is no limit to the amount of times industry lobbyists will keep coming
back with more bills that are supposed to solve the problem that bills passed
just a couple of years earlier were supposed to solve. Regardless of what happens with SOPA and
PIPA, the movie and/or recording industries will be back with another bill, if
not later this year, then next and the year after.
there are groups in Washington on the lookout for those bills, and to work
against having them pass. But simply
because of the odds involved, some will pass, as Pro-IP did. Not all can be stopped as SOPA and PIPA were.
That’s the reality – a pessimistic reality to be sure, but a reality.
In the old
days, the “threats” from technology evolved, from digital TV to peer-to-peer
file sharing, to the Internet generally, and now to cloud storage companies
like Megaupload. Of course, the
“threats” go back farther, to dual-cassette recorders, which allowed copying. The track record of the entertainment
industry suing devices out of existence is legion. Before the iPod, there was the Rio, which few
consumers got to use because it was sued out of existence, and the videocassette
recorder, which consumers did get to use because Sony won its case in the U.S.
point, then, it would be nice if Congress stopped and tried to figure out for
real, and not from the figment of the Big Media industry’s imagination, what
exactly is the problem. What
unauthorized access of works goes on? As
importantly, what is the relationship between that and any economic
results? Then, and only then, can
appropriate remedies be rationally discussed.
Retail stores suffer theft all the time.
Is everyone who goes into a dressing room strip-searched? No.
What measures are taken are appropriate for the problem. The same level of appropriate behavior is
needed here. Figure out the problem, then determine the solution.
community, bask briefly in your glory.
Then get back to work, because the next industry-sponsored bill to curb technology will be
here before you know it, and they might be smarter next time about how they pursue it.