How the Stop Online Piracy Act Got To Washington and What's Next #SOPA #PIPA

Video from Public Knowledge on the legislative history of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).  Over 71k views on YouTube.

More from Public Knowledge here on the expected cloture vote on January 24 to end the announced filibuster.  Three fifths of the Senate must support cloture (cutting off debate) for the bill to realistically proceed.  Senator Harry Reid is expected to make the cloture motion unless enough opposition arises between now and then.   Many organizations are urging citizens to contact their Senators now to urge opposition.

From Sen. Reid's website here:

Cyber Security to Protect America’s Entrepreneurs from IP Theft: Senate Democrats will seek to enact legislation to enhance our nation’s cyber security and promote the development of a well-educated, well-trained cyber workforce. Improving cyber security across government agencies, critical infrastructure, and the private sector will prevent theft of the intellectual property that is a key engine of the U.S. economy, create a jobs-rich market in security technologies and evaluation, and prevent the cyber attacks that now cost American businesses millions of dollars per year. The legislation will also expand research and development, education, and training programs designed to produce a well-qualified cyber security workforce, a highly competitive tech sector, and the continuing superiority of American innovation.
(highlighting supplied).

What the critics at Public Knowledge say here:

If made law, PIPA (S. 968) would...

• Enable removing access to websites before those websites have the chance to defend themselves in court, raising substantial concerns about the bill's impact on free speech and the First Amendment, and giving rise to a situation that is ripe for abuse.
• Define a number of key terms broadly enough to potentially harm many legitimate and beneficial services. For example, PIPA adds "information location tools" to the list of intermediaries that can be issued an injunction, making nearly every actor on the Internet potentially subject to enforcement.
• Have an unintended impact on the safe harbor status of services like YouTube because they specifically target sites that "enable or facilitate" infringement, and also requires action by third parties such as online service providers, financial transaction providers, and ad networks.
• Create conflicts between DNS servers by requiring the operators of certain domain name servers to blacklist certain DNS requests—you can see the potential for instability in the system.
• This instability could also lead to increased cybersecurity risks, including cyber attacks and identity theft, as users migrate to offshore DNS providers not subject to PIPA's provisions.
• Possibly lead to retaliation by foreign governments to take similar action against U.S. websites.
• Seriously undermine a key value in our foreign policy—how could we, as a country, support openness and access in communication and condemn the use of DNS blocking, when we are doing it ourselves?
• Risk setting a precedent for other countries to justify measures that would hinder online freedom of expression and association.

(highlighting supplied).
Mike Masnick at Techdirt summarizes the actions that are being taken to stop PIPA when Congress gets back in session later this month here and how SOPA is part of Hollywood's history of trying to kill innovation here.

From the U.S. Chamber of Commerce website:
How Do Intellectual Property Rights Drive Innovation?

As Abraham Lincoln said, “the patent system added the fuel of interest to the fire of genius…” IP protections ensure that American scientists, engineers, artists, writers, entrepreneurs and innovators recoup their investment and are rewarded for their work, incentivizing them to develop new ideas.

The patent system is the engine of the idea factory. In exchange for exclusive rights for a limited period of time, the inventor must publicly disclose the technical know-how behind a new invention. This allows other innovators to leverage past discoveries, constantly injecting new ideas into the public domain.

Congress ought to take the time to engage in the meaningful legislative process outlined in Bill Patry's excellent and newly-published How To Fix Copyright, which I reviewed here, with Patry's spirited response here (no Bill, I don't think you're churlish!)

 www.dunnington.com
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

Copyright is Not in the Machine: Book Review - William Patry’s How To Fix Copyright

How to Fix Copyright by William Patry
Oxford University Press 2011
262 pp.  $21.95 

Is copyright too long?  Too thick?  Too wide?  Bill Patry thinks so, and that should matter to you if you care about our economy, our democracy, and our future.  He also thinks that digital locks are not the answer to promoting creativity or to making copyright profitable to authors.   For those concerned with anticompetitive governmental regulation, this book is an eye-opener.  Patry argues that the author who supports strong copyright in the hopes of getting paid is shooting herself in the foot.  According to Patry, current copyright laws are not getting artists and authors paid and indeed, because they are too strong, are having a harmful effect on authors, artists and creativity itself, shifting monopolistic power to a few strong corporations.

                Like Columbia law professor-turned regulator Tim Wu, Patry fears what Wu calls (in his book of the same name reviewed here) the Master Switch, that is, a lockdown of cultural exchange on the internet that will transform  consumers into passive purchasers of pre-made culture funneling massive profits to a few media monoliths at society’s expense.   Like Prof. Lawrence Lessig (Copyright Law Does Not Make Sense here),  Patry is concerned and makes a case that copyright terms that are too strong and that interpretations of fair use that are too restrictive have had a chilling effect on the very creativity and innovations that have created practically the only new jobs in the 21^st Century economy.   And like his last book, Moral Panics and the Copyright Wars reviewed here, How to Fix Copyright spends a good deal of time criticizing those who resist technological change and disruptive technologies.

                But How To Fix Copyright distinguishes itself from its predecessors by offering a blueprint for change.   Patry falls short of offering an actual legislative proposal (perhaps his proposal will be his next book), which is probably a wise thing.  He’s smart enough politically to know that if he spells out certain details, his proposals would be taken out of context by his ideological enemies.  So HowTo Fix Copyright focuses first on making the case that copyright is broken and that not only society at large is bearing the cost, but that the creative community, copyright’s intended beneficiaries, are suffering the most.  Patry’s focus on the economics makes a powerful case that should catch the ear of big business, since the cost of using copyrights is a tax-like burden on large and small businesses alike.  Patry makes a compelling case that where too much monopoly power is granted, the rest of the economy and society suffers.    Patry’s argument should appeal to the Occupy Wall Street movement (Wall Street is not far from Midtown) as much as it should to the tax-averse members of the U.S. Chamber of Commerce.

Patry calls for an open legislative process in which the economics of copyright can be studied.  Artists and authors are not making a living, and Patry’s view is that giving more legislative gifts to middlemen who have refused to compete and adapt to the reality of business competition will have a toxic and destructive effect on the economy and our culture.   Patry wants Congress to open hearings at and dig out the truth in a serious overhaul of copyright law.   The last real overhaul of the U.S. copyright law was in 1976 and that was based on proposals from the 1950’s.   Patry makes the argument that not only are our laws based on nineteenth century industries, but that we’ve lost a lot of the legislative and economic wisdom built into earlier laws.   Rather than dictating quick fixes, How to Fix Copyright emphasizes the importance of transparent legislative  process in getting “buy-in” to the process of repairing copyright.  During that process, Patry suggests that a “one size fits all” approach to such questions as copyright terms cannot be sustained and that Congress engage in a consultative legislative process to determine what length of copyright works best, and for which works.

HowTo Fix Copyright doesn’t duck tough questions.   Patry recommends that authors of copyrights are going to have to trade the concept of “control” for the concept of “getting paid”.   Patry takes collecting societies to task on this issue, particularly in Europe.  Throughout the book, Patry moves effortlessly from U.S. to European examples giving the book a valuable depth and understanding of the international copyright marketplace.   One of Patry’s conclusions is that the Berne Convention must be reworked to permit formalities, that is the requirement of registration for copyrighted works as a condition of protection.  With U.S. adoption of Berne in 1989, a lot of materials that no one intended to be covered by copyright have fallen under the copyright laws.

Copyright law is no longer an arcane field affecting few of us, in the last decade it has become more deeply embedded in our lives than many other areas of law.  Given the centrality of copyright law to our future, if you are going to read one business book this year, this should be it.  It is published by Oxford University Press right as Congress is trying to railroad through the Protect-IP Act and the Stop Online Piracy Act, both of which are frightening attempts to lock down American culture and to convert the internet to a Chinese-style authoritarian system where DNS masking will be used to censor websites and ISPs will be transformed into spying operations designed to extract more money from consumers at the behest of a few conglomerates.  How to Fix Copyright does not address these specific legislative proposals, but it will help you understand what the debate is and why it is so important.  Unfortunately, Silicon Valley does not know how to make its case in Congress.  Instead of sensible reforms that will protect copyright owners while ensuring enough breathing space for technological innovation, Congress keeps backing legislation destructive to most of the economy that will benefit only a few monopolists.

There will probably be something in How To Fix Copyright that offends just about everyone (Patry’s take on newspapers, for example, is pretty brutal and a little unfair).  But Patry’s pedigree warrants a hearing.  He’s worked in the Copyright Office and been on the front lines of copyright legislation.  More on Patry at Wikipedia here.  He’s argued copyright cases in federal court.  He’s taught copyright law and written treatises on copyright law.  His Patry Copyright Blog was an erudite, combative, passionate joy to read.  And although How To Fix Copyright takes great care to distance itself from Google, Patry is Senior Counsel to Google, an entity with a large stake in perhaps the most disruptive technology ever to confront copyright.  If Google is listening to this guy, you should at least know what he is telling them.

Free excerpts of How to Fix Copyright courtesy Bloomberg here.

Boing Boing's Cory Doctorow calls How to Fix Copyright "incandescent" here.


 www.dunnington.com
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here