We do this dance at least twice a year now, and we're starting to get the steps so well memorized that once we hear the familiar tune, we start stepping to the beat without a moment's thought. It's the Anti-piracy Shuffle, and one defining element of its choreography is that we always end up right where we started.

Here's how it goes: You can't run an Internet server that trafficks in illicit content to American clients, from American soil, without violating American law. Makes sense. The magic of the Internet lets someone in America run a server in another country, whose domain may be registered in yet another country, that sends illicit content to American downloaders. It's impossible to prosecute one downloader without prosecuting all of them, otherwise you run into the selective prosecution defense.

The government tried to create a way to go after the Internet service providers that direct clients to these illicit addresses. What the Digital Millennium Copyright Act (which some considered evil when it was passed) managed to do was provide ISPs with an iron-clad defense: If they do not know what all their customers are downloading because there are just too many of them, then they cannot be held complicit in copyright violation. It's the basis of the safe harbor defense, and it gives ISPs good reason not to pry into customers' online behavior.

From the perspective of a legislator or justice official trying to resolve the piracy issue, safe harbor has become an unexpected obstacle. Suddenly, all the world's traffic passes through a set of points whose administrators can effectively claim no responsibility for their content. If only ISPs could be provoked to make some effort to look in the general direction of their customers, perhaps that would be just enough to dissolve the safe harbor defense. Then the Justice Dept. might have the leverage it needs to thwart Internet traffic around pirate sites. Otherwise, the DOJ cannot legally force ISPs to do what the DMCA protects them from having to do.

COICA interruptus

Last year's effort by the Senate to rustle up something enticing for ISPs came in the form of legislation called the Combatting Online Infringement and Counterfeits Act (COICA). Had it become law, this bill would have empowered the DOJ to post a blacklist of suspected illicit content traffickers. It then would have granted immunity from prosecution to ISPs that voluntarily take pre-emptive steps to redirect or otherwise stop access to these traffickers' addresses.

Cue the music, and the Anti-Piracy Shuffle began. Nothing less than the First Amendment principle of free speech hung in the balance, the Electronic Frontier Foundation told reporters, including myself. Because once an ISP has the incentive to direct Internet traffic however it wants, we were told, it can dictate what you can and cannot see on the Web. Having some overlord look over your shoulder at what you're reading, recording every button click and hyperlink, is inherently undemocratic.

Was the irony of the online movement against this law being organized on Facebook lost on everyone except myself?

This year's round of the Shuffle changes the sheet music somewhat but not the tune. In the Senate's Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT-IP) (I often think Congress puts more effort into crafting acronyms than actual legislation), the blacklist provision is gone entirely. (Remind me again how anyone thought a legally supported blacklist was good politics.) But the immunity provision remains. Keep in mind that this immunity enticement promises that DOJ will not prosecute ISPs for complicity in acts of trafficking which it cannot prosecute them for anyway.

But cue the music anyway. The EFF's Intellectual Property Director Corynne McSherry wrote on Wednesday, "Web sites that simply don't do enough to police infringement (and it is not at all clear what would qualify as 'enough') are now under threat, even though the DMCA expressly does not require affirmative policing. It creates new enforcement tools against folks who dare to help users access sites that may have been 'blacklisted,' even without any kind of court hearing."

While McSherry is correct in stating the bill is an effort to circumvent safe harbor, the blacklist from COICA is gone, even though her complaint is not. And the bill's explicit language against obstructing free speech is called into question as a gimmick, a ruse to hide its implicit intent as a speech squelching mechanism.

Protecting your assets

As Gen. George B. McClellan learned in the Civil War, when you devote all your efforts to defending your frontier, you leave your core assets unprotected.

EFF needs to take a wider-angle view of what's really going on here. Like an unwilling magnet, it gravitates too easily toward the infringement of speech argument. Which, in turn, triggers all the outbursts you read today about declaring war on the Internet, eating Internet freedoms for breakfast, and endangering the future of humanity. It's people who hold copyrights versus you, the poor consumer, whose only crime may have been the occasional sampling of a gigabyte or two of some torrent downloads.

Everyone's still dancing to music that has already stopped. The complaints roll on, even though the language they complain about has been changed or deleted.

  • The blacklist is gone.
  • The part about requiring ISPs to block access without a court order, may be found in a paragraph preceded by the following heading: "After being served with a copy of an order pursuant to this subsection..."
  • The bill would reward ISPs for taking measures on their own, not out of pressure but instead from (as yet unsubstantial) enticement.

We keep doing the same Dance of Doom so eagerly, like chickens in a Pavlovian experiment, that we don't take stock of what's really going on here. The opportunity existed, years ago, for the producers of content to build an enticing and engaging system of fair digital distribution, where customers paid a reasonable amount to see, use, or maybe own content. And Apple built it instead. Now that the content industry no longer has the opportunity to build the walls that keep customers in, perhaps it can build the walls to keep pirates out.

We saw how that movie ended already. The anti-piracy controls on Blu-ray are both a tragedy and a joke. Could the industry work with ISPs to build voluntary content management schemes? Obviously not; we saw how the whole net neutrality scenario played out, too. So who's open to discussion on this, other than... Congress.

Congress! This is the same government body that can't quite get its heads together on deciding lunch. Folks, if the greatest threat to our civil rights to organize an anti-behavioral-monitoring campaign on Facebook comes from Congress, we're in better shape than we might think.