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PIPA And SOPA Were Stopped, But the Web Hasn't Won

01/25/2012 10:22 am ET | Updated Mar 26, 2012

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. In truth, if Silicon Valley and Hollywood were the only combatants, it wouldn't be much of a war. Hollywood would win every time. In this case, the spontaneous outpouring of opposition from around the country, combined with diligent work from groups in Washington, turned the tide.

The Internet community, in Washington and everywhere else, 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. 

One salient fact -- that first sentence to that news story was published on Sept. 24, 2002 and dealt with different bills. That's why it's time to cut the Internet community's victory laps short and prepare instead for the continued long slog ahead. Hollywood (used as a shorthand for Big Media Megaliths and their trade groups), never, ever quits, even when they get what they want, much less when they don't.

 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."

Those

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. Probably not.

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 my day-job employer, 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 and interest can

be sustained over years, not simply over weeks or months.   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

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

terrorism.

 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, and only so many times dramatic actions can be used without losing their effectiveness.  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.

Certainly

there are groups in Washington, like Public Knowledge, the Center for Democracy and Technology and others, 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 should be appropriate for the problem.  The same level of appropriate behavior is

needed here.  Figure out the problem, then determine the solution, albeit in a more public, inclusive way than was done in this case.

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.