Prior to the failure of the Stop Online Piracy Act and the Protect IP Act, Hollywood and the recording industry were “used to asking for things and getting it,” Rep. Darrell Issa (R-Calif.) said June 11 during a live-streamed event at the Personal Democracy Forum 2012 in New York.
Issa pointed out that rather than allow the copyright for Disney's early Mickey Mouse films to fall into the public domain, Hollywood instead petitioned Congress to extend the copyright term, the result of which was the Sonny Bono Copyright Term Extension Act of 1998. In doing so, Issa said that Congress and Hollywood misinterpreted the Constitution's Progress Clause, which restricts intellectual property protection to “limited times.”
“It doesn't say 'for a limited amount of time as corporate interest or Hollywood may need,' ” Issa said.
Issa said there needs to be a Citizens Digital Bill of Rights that will serve as a measure for, and a check against additional legislative overreaches fueled by special interests, especially in the online arena.
Issa posted a draft of the bill on the website that he launched both in opposition to SOPA, and to gain support for the alternative rogue website bill that he and Sen. Ron Wyden (D-Ore.) introduced in 2011, the Online Protection and Enforcement of Digital Trade Act (S. 2029, H.R. 3782) (245 PTD, 12/21/11). Users can go to keepthewebopen.com and view the proposed bill, and they can also add edits or comments to the text of the proposal.
“We need a way to measure how we are going to insure that networks are protected,” Wyden, who was also taking part in the discussion, said.
The draft version of the Digital Bill of Rights calls for a free, unobstructed internet; a free flow of ideas and information; and the safeguarding of internet users' privacy. The draft also emphasizes the protection of intellectual property, stating: “digital citizens have a right to benefit from what they create, and be secure in their intellectual property on the internet.”
Issa suggested that up to one third of Congress may support the proposal in its current form, but Wyden said that given enough grass roots participation, the proposal could garner enough support to pass Congress.
The criticism that many lawmakers faced following the demise of SOPA and PIPA still weighs heavily on their minds, Wyden said.
“To me, what we saw just a few months ago was a big triumph that will change the way policy is made forever,” he said. He congratulated the attendees for helping to beat-back proposals that were pushed by what he called “middlemen.”
Wyden acknowledged that PIPA was co-sponsored by 41 Senators, “a virtual army in the Senate.” He attributed the large number of sponsors to middlemen telling Senators that the bill would curb internet piracy, but overlooking some of the troubling aspects of the legislation. “The sponsors had been told that SOPA and PIPA were low-hanging fruit because everybody is against piracy,” Wyden said.
However, “All across the country groups and critics began saying [SOPA and PIPA] are going to turn websites into webcops,” Wyden said.
Issa said that the precipitous drop in support for the controversial bills was akin to a stock market crash. Stocks rise because of greed, Issa said, because people ultimately purchase stocks that they hope will rise in value over time.
“But [the stock market] never goes up as fast as it goes down, and it goes down because of fear,” Issa said. “The internet community created a fear that the voters would realize that [lawmakers] were not voting with the interests of their constituents as much as they were voting with their own interests. I believe fear of being exposed as not caring about your constituents is very powerful,” he said.
Personal Democracy Forum's founder, Andrew Rasiej, categorizedf SOPA and PIPA as “direct assaults on the internet.” But, given the widespread backlash that those bills generated, he suggested that future legislation will be “more sophisticated” in that new proposals will erode internet freedoms in more subtle ways.
“We will face a thousands cuts, and we don't have the infrastructure to educate the American public about what each cut means,” Rasiej said.
Wyden said that lawmakers are likely to be more cautious about what they say about the internet, but he agreed that sweeping online piracy legislation is still a prevalent threat.
“My sense is that every single elected official now is going to say they are for a free internet,” Wyden said. “But at the same time they will support ACTA or the TPP,” he added, referring to the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement.
Wyden and Issa have been two of the more vocal opponents of both trade agreements, and have sought to inject more transparency into the ongoing TPP talks (103 PTD, 5/27/11), and to prevent ACTA from going into effect without express congressional authority (54 PTD, 3/21/12).
“If the TPP is written as badly as we hear it is, then all of the wins that we have won [by defeating SOPA/PIPA] could be unraveled,” Wyden said. “So you have these politicians who claim for be for an open internet, but at the same time they likely will support these bills.”
Another bill that has generated controversy, though not for intellectual property reasons, is the Cyber Intelligence Sharing and Protection Act (H.R. 3523).
Issa in fact supports CISPA, a bill designed to boost information sharing between the government and private sector. Rasiej challenged Issa on his support for the bill.
Issa said that while he does not think the CISPA is perfect, he recognizes the need to have established rules governing what types of information can be shared between the government and private actors.
Regardless of whether CISPA passes, the National Security Agency “is going to get clandestine info, and we need to know the rules of the road,” Issa said. CISPA merely provides transparency, and allows everyone to know where they stand, he said.
Wyden said he has some reservations about the bill.
“I am concerned that there are people who are using a legitimate concern over cyber threats as an excuse to create a cyber industrial complex that plays on fears and has a big appetite for private data,” Wyden said. “We need to make sure that this is not used as a Trojan horse to sweep aside privacy.”
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