December 24, 2006 · Lessig
“Radical” changes in Washington always have this Charlie Brown/Lucy-like character (remember Lucy holding the football?): it doesn’t take long before you realize how little really ever changes in DC. The latest example is the Dems and IP issues as they affect the Net. Message to the Net from the newly Democratic House? Go to hell.
As everyone knows, one issue critical to those who are making the Net interesting (for politics at least) is IP reform. Not “reform” in the sense of the last decade (e.g., Sonny Bono Copyright Term Extension Act, DMCA, NET Act, etc.), but real reform designed to make IP laws work sensibly in the digital age. Real reform — not the piddly full-employment-act-for-lawyers reform proposed by the Copyright Office for “orphan works,” or the puny reform suggested for digital libraries. Instead, reform that tries to fit the legitimate objectives of copyright — to assure that artists have the incentives they need to create great new work — into the contours of digital technology.
To craft that reform would require real work. I don’t think anyone has a clear picture of what would be best yet. But what is clear is that the war on technology of the last decade must come to an end. And the efforts by content holders to leverage their power over rights they can’t even prove they own (see, e.g., the Google Book Search battle) into control over the architecture of the net must be stopped. No one should defend “piracy.” But no one should believe that the way the law currently defines “piracy” makes any sense at all.
So is there any hope for such reform from the Democrats? Word from Washington so far: Fat chance. As reported in the LA Times two weeks ago (registration required but hey, it’s LA), the crucial House IP subcommittee will be chaired by Hollywood Howard (Berman) — among the most extreme of the IP warriors. It is this committee that largely determines what reform Congress considers. It is the Chairman who picks what voices get heard. And while Berman is a brilliant man — whose brilliance could really have been used in the problems facing the mid-east — his brilliance has not yet been directed towards working out the problems of IP and the Net with any view beyond the narrowest of special interests.
This is like making a congressman from Detroit head of a Automobile Safety sub-committee, or a senator from Texas head of a Global Warming sub-committee. Are you kidding, Dems? The choice signals clearly the party’s view about the issues, and its view of the “solution”: more of the same. This war — no more successful than President Bush’s war — will continue.
No doubt, there are Net issues beyond copyright — surveillance, net neutrality, etc. But I suggest this choice is an important signal about this party (and I’m afraid, any party). I once asked a senior staffer of a brilliant Senator why the Senator didn’t take a stronger position in favor of Net Neutrality. “No Senator remains a Senator opposing an industry with that much money” was his answer.
And so too here. The Dems have looked at the potential “return” from the activists on the Net. They’ve considered the kids being sued by the industry (including the kids running MySpace, and maybe soon, YouTube), and the kids creating amazing new (but presumptively illegal) mashups and remixes, and they have compared that value to the party with the value promised by Hollywood. Result: the 20th Century continues to rule.
Dems to the Net: “Thanks for the blogs. And please continue to get outraged by MoveOn messages. But don’t think for a second we’re interested in hearing anything beyond the charming wisdom of Jack Valenti. We appreciate your support. We appreciate your money. But come on — you’re all criminals. Don’t expect your criminal ways to be taken seriously by an institution as respected as the US Congress.”