The real story behind last week’s blow-up over legislation regulating piracy on the Internet has less to do with the fears of motion picture studios or the intransigence of technology companies than with the legislative process itself. By taking their lead exclusively from copyright owners, and failing substantively to consult with technology companies, committee members in the House, much like their Senate counterparts earlier, forfeited the opportunity for a workable solution.
Copyright lawmaking has not always been like this. In the years leading to the present Copyright Act, committee chairs in both houses negotiated the difficult intersection between copyright and the then-new technologies of photocopying, computers and cable television by bringing all interested parties to the bargaining table. Senator Orrin Hatch may have been exaggerating only slightly when in connection with a 2004 copyright-Internet bill he said, “If I have to, I will lock up all of the key parties in a room until they come out with an acceptable bill that stops the bad actors and preserves technological innovation.”
Safe harbor provisions enacted by Congress in 1998 are the product of such a locked-door discussion between copyright owners and technology companies. To be sure, the safe harbors they designed for Web 1.0 are experiencing some strains in a Web 2.0 world, but they continue to provide a widely accepted set of red, yellow and green lights for copyright traffic on the Internet.
And there are better reasons for Congress to consult all sides than just striking a deal. One benefit of cross-industry discussions like those that led to the Internet safe harbors is that technologists can explain to the creative community what kind of tinkering will and will not work. Another benefit is that properly designed legislation can give technology companies an incentive to apply their particular genius to produce innovations that will further reduce piracy without disrupting lawful life on the Internet.
Responding to the present legislative impasse, former Senator Christopher Dodd, now the head of the motion picture association, said that he would welcome a summit meeting between Internet and content companies. This is a fine thought. But if a law is to be passed, it is the responsibility of Congress to ensure that all interests are fully represented in the process, and that the solutions they reach conform to the public interest.
Paul Goldstein is a Stella W. and Ira S. Lillick Professor of Law at Stanford Law School. He has authored eight other books including two novels devoted to intellectual property themes, "Errors and Omissions" and "A Patent Lie." Some of his other works include "Copyright’s Highway: From Gutenberg to the Celestial Jukebox", a widely acclaimed book on the history and future of copyright, and I"ntellectual Property: The Tough New Realities That Could Make or Break Your Business." His next novel, Havana Requiem, is forthcoming in April 2012.