For the past twenty years, my life and work in Washington D.C. have let me both observe and contribute to the operation of what is surely one of the best governments in human history. The resulting perspective was sometimes inspiring, often perplexing, and sometimes depressing. But while the daily foibles of representative democracy may sometimes cause even its most ardent advocates to contemplate the restoration of the Bourbon Monarchy, there are also those faith-restoring moments when principle unexpectedly trumps politics and common sense suddently prevails.
That happened this morning at a hearing held by the Senate Committee on the Judiciary entitled Oversight of the Office of the Intellectual Property Coordinator. Unless I am mistaken, this hearing produced something that I would not yet have predicted: a politically risky, bipartisan, Legislative/Executive-Branch call for private copyright owners, internet-access-service providers and payment processors to work together to devise private solutions to the challenges of curbing digital piracy and internet counterfeiting.
I thus extend my sincere, (and rather awed), congratulations to the Intellectual Property Enforcement Coordinator, and to the Democratic and Republican Members of the Senate Committee on the Judiciary. They all called for the private cooperation between rightsholders, access-providers and payment-processors that could restore the rule of law on the Internet and vastly expand the sort of lawful internet commerce in which Americans can engage while deterring the foreign racketeering enterprises that now play too large a role in unlawful internet commerce.
That is a remarkable result. It reflects not only the political courage required to speak truth to the self-righteously self-centered, but also the re-affirmation of a point that Congress rather quietly encoded in the DMCA in 1998: the best solutions to the challenges of digital piracy are likely to be those developed as a result of cooperation between private parties with diverse interests. See 17 U.S.C. sec. 512(i)(2).
I thus strongly encourage rightsholders, access-providers and payment processors to heed this clarion call to cooperate and devise solutions superior to those that would require copyright owners to enforce their federal civil rights by suing tens of thousands of the constituents of the Members of Congress and the President. These representatives of the People appear to be recognizing the simple truth: It is utterly absurd to imagine that we, the citizens of the most innovative nation on Earth, can devise no better means to enforce the exclusive rights of artists.
Nevertheless, if this call for solutions is not headed, then the Supreme Court should reconsider the wisdom of any judicial decisions that might be creating the appearance that private cooperation to preserve the rule of law is simply unnecessary. The Court moved narrowly to correct such a failure of common sense in Grokster. If it is forced to do something similar again, broader remedial measures may be warranted.