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If you’re a follower of copyright law, the last several months have been interesting, to say the least. During the debate over the Stop Online Privacy Act and the PROTECT IP Act, copyright talk briefly entered the national discourse. Although that process ended with no changes in the law itself, it’s possible that it did bring about a major change in the discourse. If so, this could have a big impact on what future changes are made.
During that intense period of debate, one thing became clear: there is now more than one side in the discussion. For many years, the only real voices discussing copyright policy with Congress were the copyright holders. The major rightsholders were organized and therefore able to coordinate their lobbying efforts effectively while consumers and copyright users lacked the structure and impetus to form a similar effort. As a result, from the Copyright Act of 1790 to the present day, copyright law has only ever expanded. However, with the rise of the Internet, group-forming has been reduced from a time-consuming endeavor to a simple button click, opening the door for the formation of myriad groups of concerned but dispersed people. Among those groups are some who believe that copyright has become overbroad and should be reformed.
Despite their best efforts, these groups have been primarily playing defense for the past decade plus. This includes advocating for new exemptions to the Digital Millenium Copyright Act’s anti-circumvention provisions or offering protection from copyright trolls, but has stopped short of slowing the creep of copyright terms. In fact, this year saw the Supreme Court rule in Golan v. Holder that Congress may reach back into the public domain and re-copyright a work. However, the new provisions proposed in SOPA and PIPA seemed to be the largest and most wide-reaching since the passage of the DMCA, making the latest success more impressive.
If the outcry against SOPA and PIPA is any indication, though, those groups may be on the verge of important success. Those proposed laws offered what could have been the biggest changes in copyright law since the DMCA, and were on track to become law. It was solely through a coordinated campaign against the bills that lawmakers were convinced to switch from the “yea” column to the “nay” column. The movement even spread internationally, where Europeans have begun turning against the long-in-the-works Anti-Counterfeiting Trade Agreement. (Whether that part of the protest will return to America remains to the seen.)
The copyright debate is far from over, but it may be changing. In fact, with the added awareness the comes along with the recent national spotlight, it’s possible that the debate may only just be beginning. Multiple petitions have popped up on the White House’s We The People site. In addition to in-depth articles on the matter, a presentation at the TED Conference drew attention to perceived illogic in the current statutory regime. It appears that copyright advocacy may be moving from a largely academic realm to a more popular one. For now, the only thing that’s proven is that copyright laws that impact the Internet will meet with strict scrutiny. Whether such strict scrutiny will extend to other copyright issues like duration and damages remains to be seen. For the first time, though, such reforms actually seem possible.
– Steven Reilly
Steven Reilly served as Editor-in-Chief of JETLaw from 2009-2010. He now lives and works in Washington, DC.
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