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Wednesday, January 2, 2013

Cyberlaw Predictions: Aftermath of SOPA/PIPA

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This post is the first in a series of predictions from legal and business experts about the directions cyberlaw policy might take in 2013, solicited by editors of during the closing weeks of 2012. We asked that the remarks be brief -- something along the lines of a Twitter "tweet" or an elevator pitch. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts responded, producing 307 separate assessments, predictions, or just plain complaints about any topic that fell under the general heading of cyberlaw.

Nearly one year later, debate continues over what exactly happened to the Stop Online Piracy Act (H.R. 3261) and the Protect IP Act (S. 968), and what the copyright owner community's failure to advance these pieces of legislation means for copyright policymaking in 2013. Out on the internet, there was quite a bit of chesty talk about how internet users had galvanized into a force to be reckoned with in Washington. That may be true and, if it is, the presence of the internet user's voice in copyright policymaking would be unprecedented.

On the other hand, SOPA/PIPA supporters in Washington believe that the problems with that legislation were due a combination of poor drafting and a concerted disinformation campaign waged by a small number of online businesses (Google in particular, of course). They will be back with a similar bill in 2013, possibly one that addresses Google's concerns.

mozilla sopa

I will venture this: The manner in which SOPA/PIPA supporters in Congress abandoned ship at the first sign of user/voter opposition, and the frequent "This isn't SOPA" protestations that were heard during the subsequent effort to pass a federal cybersecurity bill, are evidence of a very timid Congress that copyright owners can't necessarily count on the way they could in the past. If federal copyright enforcement legislation passes in the next Congress, copyright owners will have to work very hard to achieve it.

The experts' views:

2012 was marked by the failure of Congress to pass legislation to curtail online counterfeiting and piracy after efforts by Internet companies succeeded in stopping the PIPA and SOPA bills. In 2013, we expect to see renewed efforts by new leadership in the House and Senate to restart such legislation without the controversial provisions, such as DNS blocking, that led to the downfall of the prior bills. James L. Bikoff, Partner, Silverberg, Goldman & Bikoff, LLP, Washington, D.C.

A global polity of netizens is arising. David Johnson, Visiting Professor, New York Law School, New York, N.Y.

SOPA/PIPA in the U.S. and ACTA in Europe made copyright policy a mainstream issue--with many Republicans seeing this as a way to connect to younger voters. Hollywood can no longer count on bipartisan support to move its agenda in Congress, and faces an uphill battle in getting trade agreements on Internet piracy ratified abroad. Harold Feld, @haroldfeld, Senior Vice President, Public Knowledge, Washington, D.C.

Most agree offshore pirate sites a huge problem. If PIPA/SOPA not the solution, what is? How are search engines, advertisers, payment services, gov'ts stepping up? Steve Metalitz, @mskllp, Partner, Mitchell Silberberg & Knupp LLP, Washington, D.C.

SOPA not passed. Next day MegaUpload seized by US government. Ian Ballon, @ianballon, IP & Internet Litigation Shareholder, Greenberg Traurig LLP, Silicon Valley & Los Angeles.

In the wake of the SOPA debate, we will witness the start of legislative efforts to scale back copyright law for the first time in decades. Adam Thierer, @adamthierer, Senior Research Fellow, Mercatus Center at George Mason University, Fairfax, Va.

The SOPA/PIPA protests put Congress on notice that the public cares about copyright issues. But the Republican Study Committee's firing of Derek Khanna showed that Congress may not be interested in listening. James Grimmelmann, Professor of Law, New York Law School, New York, N.Y.

The battle between content owners and content users over lawful use of IP on the Internet erupted in the halls of Congress this year when content users inspired an uprising against the Stop Online Piracy Act that left Members of Congress and their staffs running for cover. Howard S. Hogan, Partner, Gibson, Dunn & Crutcher LLP, Washington, D.C.

Here's one thing we learned in 2012: Internet users won't stand for backroom deals, like SOPA, ACTA, and now TPP, that threaten internet infrastructure, free expression, and innovation. Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation, San Francisco.

The TransPacific Partnership discussions are continuing, and public interests groups are still excluded. Apparently international trade negotiators still believe that Internet users will acquiesce in whatever backroom deal they come up with, no matter how dangerous to expression, internet infrastructure, innovation and privacy. If they can't make the process more participatory, we will see the same kind of massive protests we saw with SOPA and ACTA. Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation, San Francisco.

(photo credit: joharrington on flickr)

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