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Lame Duck Bills (or, Business as Usual)

  We see the lame duck session of Congress as the last chance to gain a crumb of equality before the new session of Congress begins.  For us, it is the Democrats’ last chance to help us gain the equality we believed they stood for.  However, for them it may very well represent something much more important, something more like an outgoing President’s midnight signing statements and pardons; a final chance to reward their financial backers.  Given those two choices, whom do you think they will choose?

Case in point:  

 The Combating Online Infringement and Counterfeits Act, introduced by Sen. Patrick Leahy (D-VT). COICA would grant the federal government the power to block access to any Internet domain that is found to host copyrighted material without permission.  Note that COICA would be applied toward entire domains, not specific material; this means that an entire web site may be shut down for a single infringing document.  Wikileaks or any other dissenting website that annoys a government official enough would be easy targets.  Very much in the same vein as the recent shutdown of offshore pharmacies operating legally in foreign countries and selling goods within the law to US citizens, COICA will enable the government to shut down US access to foreign web servers without so much as a fair use hearing.  


One-click hosting websites such as Dropbox, MediaFire and Rapidshare: these sites allow users to upload anything, and do not police files unless they receive DMCA takedown notices. That’s the way the law currently works, and although it causes problems, it at least strikes a balance between copyright enforcement and freedom for sites to innovate. Under COICA, the Department of Justice (DOJ) could decide that there is “too much” piracy on any of these sites and it is therefore “central” to their businesses.

MP3 blogs and mashup/remix music sites like SoundCloud, MashupTown and Hype Machine: the RIAA has a long history of litigating against unauthorized sampling and musical quotation in all of its forms; while these uses should be protected by the fair use doctrine, the DOJ might come to another conclusion, especially under pressure from the RIAA, and just take MP3 blogs and remix music sites offline whenever the recording industry complained about them.


 Regardless of your view of file sharing or music sampling or the RIAA, this isn’t how copyright law enforcement is supposed to work.  But it is exactly what the recording industry requested and is reportedly on the fast track to be pushed through the lame duck session.  Keep in mind that the upper levels of illicit file sharing do not take place on the web but rather over older, less centralized layers of the Internet:  It is also crucial to consider that this law can be used to shut down sites inconvenient to the government itself (such as the aforementioned wikileaks), and this may be an ulterior motive for quick passage.  Industry benefits, the government benefits; what could be better (ignoring damage to America’s long standing protections against censorship, of course)?

 Non-repeal of tax cuts for the wealthy?  Likely a done deal as Obama has indicated he’ll pre-emptively capitulate in the “spirit of cooperation”.  But what about DREAM?  DADT?  ENDA? Unemployment benefits extension?  The Disclose Act?  All deemed “too controversial” by those leaving town.  COICA however is on the fast track to passage during the lame duck session despite the potential damage to free speech and fair use via unbridled government censorship.

 But, let’s say I’m wrong.  Let’s say DADT repeal gets scheduled after all, and passes.  It’s the safest as it is popular and directly grants equality to the smallest number of ‘icky’ LGBT citizens (compared to say, DOMA and ENDA).  Rather than celebrating the bone-toss victory however, we should consider what it would reveal about our troubled relationship with Washington: If our equality as citizens was at all important to them in terms of platform and lofty ideals rather than just dollars and votes, why did they squander or outright demolish with hostility all prior chances to do the right thing?  Why wait until the lame duck?  By waiting until only the last days of the session remain to speak to our equality, they would be stating loudly and clearly that under all the rhetoric they too feel that we are undesirable and undeserving of basic civil equality.

 We can and must do better going forward.  Never again can we trust others to fight for us, be they a lobbying organization or major political party.  It is time for us to grow up as individuals, subcultures and coalitions and fight for our own equality.  No one else will do it for us.


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