A little taste of a project I hope to start working on soon, if the funding comes through:

As Jessica Litman details persuasively in Digital Copyright, since at least the beginning of the 20th century, the U.S. copyright policymaking process has been set up to achieve a rough balance among the interests of various groups. In the mid-1990s, Bruce Lehman, head of the Patent and Trademark Office and former computer software lobbyist, attempted an end-run around Congress by going to the World Intellectual Property Organization (WIPO) to get a treaty that would bolster the hand of the copyright industries back home.

Interestingly enough, as I argue in my dissertation, Lehman’s strategy essentially failed. “User” groups, widely defined, rallied against the U.S. Administration’s one-sided approach. The resulting legislation, the Digital Millennium Copyright Act (DMCA) may have its flaws, but it undoubtedly reflects the will of the major (political, economic) U.S. players. The telecoms and ISPs got their notice-and-takedown regime, the copyright industries got their heavy-handed Digital Rights Management/Technological Protection Measures rules. Less-powerful interest groups received various exemptions, including a “rule-making” process that allows the Librarian of Congress to revisit the DRM rules every three years to introduce exemptions as needed.

Of particular interest to me is the role played by nascent “public interest” groups, most notably the Digital Future Coalition, spearheaded by lawyer Peter Jaszi, among others. According to Litman, it played a coordinating role among critics of the Lehman position. The DFC also publicized the issue, although they were not really at the table when the legislation itself was being hashed out.

Fast forward to 2011, and you have the Stop Online Piracy Act, a Draconian piece of legislation designed solely to address the interests of the copyright industries, and, if enacted as is, would essentially cripple the entire Internet. Fun stuff. And now, in the past couple of weeks, more and more groups are expressing their displeasure. Even the Business Software Alliance, hardly a roguish cabal of eyepatch-sporting seafarers, has criticized the bill.

So far, despite the high stakes (or perhaps because of them), the U.S. copyright process is acting exactly as one would expect. The main wild card this time around, however, is that the public (a tricky term, but I’m thinking out loud here) seems to be taking a much bigger interest in this fight than they did in 1998. Back then, the public-interest position was being led by copyright lawyers and experts. They’re still alive and kicking in 2011, but there are a lot more groups focused on copyright issues in Washington: the Electronic Frontier Foundation (which was pretty green the last time around), Public Knowledge, the Future of Music Coalition, just off the top of my head. And as Techdirt is reporting, SOPA has spurred some pretty impressive public involvement.

While U.S. copyright laws have always reflected a balance of interests, these interests have always been narrowly defined. In short, the overarching “public interest” in copyright – ensuring that copyright law promote both the production (not protection) and dissemination of creative works – has been seriously underrepresented at the copyright policymaking table. Those at the table may be more or less interested in increasing protection levels or maximizing the potential for dissemination, but there are few voices who advocate for the big picture. As Litman says, U.S. copyright lawmaking basically involves groups engaging in zero-sum dealmaking.

As I see it, the SOPA debate raises a couple of intriguing questions.
1. Is the public more engaged over SOPA than they were over the DMCA?
2. What effect will this public engagement have on the final bill (assuming Congress passes something)?

This last question is key. Will increased public notice in copyright (assuming it exists) and greater involvement by public-interest groups like Public Knowledge lead to a different outcome in 2011 and 2012 than in 1998? What version of the “public interest,” if any, will be represented at the negotiating table?

Comments welcome. I can’t wait to find out.