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PIPA Just a Few Votes From Defeat on Cloture

UPDATE: The update from this morning is that Harry Reid has postponed work on the bill. Go read that.

We are very close to being able to predict a loss for the Protect IP Act, or PIPA, in next week’s cloture vote in the Senate. According to the Open Congress whip count, which is user-generated and seems to have the most updated information, 33 Senators are either co-sponsors or leaning toward supporting PIPA, and 38 Senators are either confirmed No votes or leaning that way. As we all know, it takes 41 votes to block a cloture vote. So if the leaners pan out we’ll see cloture go down.

To those seeking consistency in all things: I would prefer a Senate where a majority vote passed a bill into law. But 1) I don’t get to rewrite the rules, and if supermajority requirements are hurdles for good things, for consistency’s sake they should be hurdles for bad things; and 2) at the rate we’re going, I don’t even think that the bill gets a majority on cloture. The National Review came out against it today:

It is doubtful that either SOPA or PIPA would have done much to slow down online pirates, any more than a stack of legislation would slow down spam e-mails or enticing offers from fictitious Nigerian financial officials. SOPA and PIPA would have allowed the government to require search engines, Internet service providers, online-advertising networks, and the like to block access to sites designated as being mainly involved in the criminal activity of distributing pirated material. Websites facing such complaints would have a process to appeal their designation, though the worst offenders would of course have no incentive to do so, their guilt being plain and undeniable. Instead, the full-time pirates would have a very strong incentive to simply switch to another website, or to a proliferation of websites, or to deploy any number of commonly available technological solutions to defeat government attempts to block them. Here should implies can, and can is doubtful […]

While too much was made of this legislation’s potential for abuse, the potential, though modest, is real, as it is with all police powers. We strongly prefer to keep Washington’s 535 legislative noses and their countless bureaucratic counterparts out of the Internet.

From the other side of the coin, you have Matt Yglesias:

Much of the debate about SOPA and PIPA has thus far centered around the entertainment industry’s absurdly inflated claims about the economic harm of copyright infringement. When making these calculations, intellectual property owners tend to assume that every unauthorized download represents a lost sale. This is clearly false. Often people copy a file illegally precisely because they’re unwilling to pay the market price. Were unauthorized copying not an option, they would simply not watch the movie or listen to the album […]

After all, things like public libraries, used bookstores, and the widespread practice of lending books to friends all cost publishers money. But nobody (I hope) is going to introduce the Stop Used Bookstores Now Act purely on these grounds. The public policy question is not whether the libraries are bad for publishers, but whether libraries are beneficial on balance.

By the same token, even when copyright infringement does lead to real loss of revenue to copyright owners , it’s not as if the money vanishes into a black hole. Suppose Joe Downloader uses BitTorrent to get a free copy of Beggars Banquet rather than forking over $7.99 to Amazon, and then goes out to eat some pizza. In this case, the Rolling Stones’ loss is the pizzeria’s gain and Joe gets to listen to a classic album. It’s at least not obvious that we should regard this, on balance, as harmful.

Both editorials raise some intriguing questions, but come at them from completely different perspectives. And yet both make compelling arguments against a draconian piece of legislation that throws the burden of intellectual property protection onto third-party Web sites, and creates plenty of opportunity for censorship of the Web, to say nothing of breaking the essential architecture of the Internet and increasing the possibilities for abuse.

Now, given all this, and the amazing activist energy arrayed against this bill, why in the world is Harry Reid still planning a vote on this thing on Tuesday? He’s sending his own members into a wood chipper by forcing them to choose between Hollywood lobbyist money and their constituents. Isn’t this the type of thing a Majority Leader protects against?

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David Dayen

David Dayen