withdrawal of the court order provision (Section 3) from the Senate version - called PROTECT-IP or PIPA - of this year's round of anti-piracy legislation, will very likely doom any chance of such legislation emerging from Congress this year. Although SOPA, the House version, may yet pass with its version of the court order provision intact, any single bill that passes both houses must be a reconciled version of SOPA and PIPA. With Sen. Patrick Leahy (D - Vt.), one of PIPA's co-authors, now advocating further study in the next congressional term, any move by the House this term will largely be for show.The imminent
As we begin to emerge from this round of the anti-piracy fight, none of us are particularly any smarter or wiser or more prepared for the next round than we were before. Not only do we lack a better idea of what a solution may be for the future, all of us have, in one way or another, succeeded in misdiagnosing the problem.
It's harder now to find a common ground of mutual agreement from which to begin again. I could try, by saying that we should all agree that there needs to be some type of law that responds to the theft and illicit publication of intellectual property by a foreign entity. What astonishes me is that there's considerable disagreement on even that point.
Square one or ground zero
So perhaps I should step back even further. Maybe we can agree on this: If someone wants to create an intellectual product and publish that product, she should have the exclusive right to profit from it. Put another way, if you write something and want to sell it, you shouldn't have to fight someone else in another country taking it out from under you and giving it away. If you're an artist, a musician, an author, or any combination of these things, you should be able to make a living. You have that right.
And the law should protect that right. For me, more than any other reason, this is what the First Amendment to the Constitution of my country is about. Your expression should belong to you.
The spirit in which the process of drafting anti-piracy legislation begins, is the genuine desire to protect this right. The problem, when applying any system of justice or responsibility to the Internet as a whole, is that the system of communication that has manifest itself through the Internet is, by design, unburdened by any center of authority. It is not the responsibility of the service that provides you with content to take charge of the content itself, to know what it is you're downloading. Therefore, you do not entrust your ISP with the task of protecting your rights.
Right now, you don't entrust anyone with that task. As a result, no legislation drafted thus far can identify and isolate the party that can or must "throw the switch," acting in the interest of content creators to prevent some server stationed on a neutral country's offshore oil rig from claiming the right to publish their work.
Who do you trust?
In 2009 and '10, the COICA bill (also co-authored by Sen. Leahy) experimented with compelling you, the Internet user, to assume that responsibility for yourself. The government would publish a list of suspected intellectual property thieves, and it would be up to you to avoid them. As a favor to society, the government would have asked you, please avoid visiting the following Web sites... Sen. Leahy is a good man, but this was a ridiculous idea, and I suspect he may realize that now. As it should, this concept (which truly was a blacklist) failed.
READ ALSO: "Even Without DNS Blocking, the Protect IP Act Could Still Stifle Innovation" by Dan Rowinski
PROTECT-IP and SOPA tried the notion of compelling the people who run DNS servers to thwart access to sites served with a court order. If you put yourself in a congressperson's position, you can understand why this must seem have seemed sensible enough. It's like asking the Yellow Pages to stop publishing the phone numbers of automobile hack shops and back-alley counterfeit goods stores. But the Internet is not the telephone system; there is no centralized directory or switchboard or authority. Even the law today protects the interests of service providers who do not assume an authoritative stance over the content they serve.
So that's not going to work either. The Wyden-Issa alternative bill, proposed late last year (one of several bills known as OPEN) experiments with another idea: Perhaps anti-piracy is not a justice matter, but a commerce matter, it asserts, so it would task the U.S. International Trade Commission with the matter.
There is a lot of merit to that idea. But it faces hurdles at least as colossal as the forces blocking SOPA/PIPA. One is by virtue of omission: As it stands now, the Wyden-Issa bill would task the USITC with initiating an investigation to determine the identity of the person or entity that should be served with a cease-and-desist order. The whole problem that led to the drafting of COICA years ago was the fact that these overseas entities could not be determined. This leads to problem #2: the cost of such investigations which, when coupled with the cost of new judges who would inevitably need to be appointed, would lead to new administrative costs that House Republicans would almost certainly denounce as liberal tax-and-spend policies.
Which brings up problem #3: Unless another revolution happens this November, a Republican House will never draft a counterpart, even with Rep. Darrell Issa's (D - Calif.) direct sponsorship. Assuming a miracle happens there, however, problem #4 for the bill would involve enforcement. Since this would be a Commerce Dept. matter, ensuring its enforcement would literally shift the burden from ISPs - where SOPA/PIPA placed the burden - to trade ambassadors who would need to negotiate each individual case with his foreign counterpart. Imagine the poor fellow who has to get China on the phone to resolve each little anti-piracy matter.
Although the non-authoritative nature of the Internet has been described by many (including our own State Dept.) as the model of freedom in the modern world, we can see that it's not because we are restrained by the chaos that ensues. Freedom from authority enables someone, somewhere, to exploit that freedom for illicit gain. In the name of protecting freedom and maintaining openness, we end up postponing the search for a solution that would ensure that freedom. And often in our haste to level the playing field for everyone, we deny the opportunity for leadership to rise from its midst. Until we can all equally trust each other out here, we have to decide to trust someone.