Wait and See Persists on Copyright Issues

Opinion: If the Supreme Court says Congress has full responsibility in crafting copyright law, tech should prepare for full-on political warfare as Hollywood fights for the protections it thinks it needs.

The U.S. Supreme Courts decision to take up the legal implications of file-sharing is one of those events whose impact in the political world of bank shots and sleights of hand isnt immediately apparent.

The Supreme Court has said it will hear arguments in the case brought by Hollywood studios and record companies, led by MGM, against Grokster Ltd. and Streamcast Network, which owns Morpheus. Lawyers should appear for arguments in early spring, but it could be late summer before the court issues a decision.

The movie studios, of course, are saying that the court might well tell the lower court it was wrong in ruling that file-sharing software is legal. But theres no guarantee.

For their part, tech folks are saying that the courts decision to hear the case could solidify the decisions that have already been issued. All of this is obvious.

Whats not so obvious is what will happen in Congress. Right now, copyright legislation is on hold well into fall. Congress and the lobbyists who walk its halls will wait to see what happens in the nations highest court before wasting time or money pleading their case in Congress.

"My guess is that theyre going to want to wait and see," said Gigi Sohn, president of Public Knowledge, a Washington- based group that has been defending tech companies. "You can always go back to Congress if the Supreme Court doesnt give you what you want."

Should the court decide that file-sharing technology is in fact illegal, Hollywood will be satisfied and better armed to get what it wants from Congress. Thats the outcome lobbyists such as Sohn fear the most.

Should things go in favor of tech companies, well, the fight will just move from one white-marble Washington building to another. The lobbying in favor of clearer rules on what can and cannot be done online or the more utopian "information wants to be free" movement will have picked up some Washington street cred of the highest caliber.

But if the Supreme Court says—as it did in its last copyright case—that Congress has full responsibility in crafting copyright law, tech should prepare for full-on, high-stakes political warfare. Hollywood will wage a fierce and expensive fight to get the protections it thinks it needs.

There are plenty of warning flares already up. The movie studios lobbying group, the Motion Picture Association of America, is aggressively going after BitTorrent, the video-sharing software. The MPAA is simply following the Recording Industry Association of Americas lead, trying to shut down technology it doesnt like.

But uncertainty over what will happen at the Supreme Court moves beyond the congressional judiciary committees, which have the most say over copyright issues. The court hearings probably mean this Congress is unlikely to see real action on telecom reform as well as copyright.

Unless theres powerful political backing, it usually takes both years of a congressional session for bills to become laws. And most of the companies involved in copyright are also deeply concerned about telecom.

So, the Supreme Court action, which is delaying action on copyright until the second session of this Congress, probably will push telecom reform further down the calendar, possibly to a whole new post-2006 session.

Regardless of where theyre felt, the implications of the Supreme Courts pending decision arent trivial. "I hope, frankly, they are on peoples minds," says TechNet CEO Rick White. "It would be a good reminder for people not to get too arrogant in the ability to predict the future."

White, a member of Congress when the Telecommunications Act of 1996 was passed, says hed like to remind Congress that it cant—and it shouldnt—try to foresee the legal implications of innovation. Thats one reason many in tech circles are calling for revisions to the act.

As for legislative action? Hes not optimistic. "I think theres going to be a lot of talk the first year, but nothing will happen until the second year," he predicts.

eWEEK.com Technology and Politics columnist Chris Nolan spent years chronicling the excesses of the dot-com era with incisive analysis leavened with a dash of humor. Before that, she covered politics and technology in D.C. You can read her musings on politics and technology every day in her Politics from Left to Right Weblog.


Check out eWEEK.coms for the latest news, views and analysis of technologys impact on government and politics.