The Web Can’t Declare Victory Just Yet — If Ever
The Web Can’t Declare Victory Just Yet — If Ever
The Web Can’t Declare Victory Just Yet — If Ever

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    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
    moved forward. 

    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
    laps short.

     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
    association executive.

     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
    at stake.”

    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?

    Maybe yes,
    maybe no.

    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.

    The problem
    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.

    The Digital
    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
    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.
    Supreme Court.

    At each turn,
    there are threats made and outlandish, unproven, predictions of job losses and
    economic despair that will be caused by the newest technology.

    At some
    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.

    So Web
    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.