Don't Make Copyright Law in Smoke-Filled Rooms

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Copyright law affects everything we do on the internet. So why do some lawmakers and powerful companies still think they can write new copyright law behind closed doors, with ordinary internet users on the outside?

Major movie and TV studios are again pushing Congress to create a vast new censorship regime on the U.S. internet, one that could even reach abroad and conscript infrastructure companies to help make whole websites disappear. The justification is, as always, creating ever more draconian means of going after copyright infringement, and never mind all of the powerful tools that already exist.

The movie studios and other major media companies last tried this in 2012, seeking to push a pair of internet censorship bills called SOPA and PIPA through Congress, without hearings. Lawmakers were preparing to ignore the concerns of internet users not named Disney, Warner, Paramount, or Fox. At first, they ignored the long, sad history of copyright enforcement tools being used for censorship. They ignored the technologists, including some of the creators of the internet, who explained how website-blocking creates security threats and inevitably blocks lawful speech. And they ignored the pleas of ordinary users who were concerned about the websites they relied on going dark because of hasty site-blocking orders.

Writing new copyright laws in the proverbial smoke-filled backroom was somewhat less surprising in 2012. Before the internet, copyright mainly governed the relationships between authors and publishers, movie producers and distributors, photographers and clients, and so on. The easiest way to make changes was to get representatives of these industries together to hash out the details, then have Congress pass those changes into law. It worked well enough for most people.

In the internet age, that approach is unworkable. Every use of the internet, whether sending a photo, reading a social media post, or working on a shared document, causes a copy of some creative work. And nearly every creative work that’s recorded on a computing device is automatically governed by copyright law, with no registration or copyright notices required. That makes copyright a fundamental governing law of the internet. It shapes the design and functions of the devices we use, what software we can run, and when and how we can participate in culture. Its massive penalties and confusing exceptions can ensnare everyone from landlords to librarians, from students to salespeople.

Users fought back. In a historic protest, thousands of websites went dark for a day, with messages encouraging users to oppose the SOPA/PIPA bills. EFF alone helped users send more than 1,000,000 emails to Congress, and countless more came from other organizations. Web traffic briefly brought down some Senate websites. 162 million people visited Wikipedia and 8 million looked up their representatives’ phone numbers. Google received more than 7 million signatures on its petition. Everyone who wrote, called, and visited their lawmakers sent a message that laws affecting the internet can’t be made in a backroom by insiders bearing campaign cash. Congress quickly scrapped the bills.

After that, although Congress avoided changing copyright law for years, the denizens of the smoke-filled room never gave up. The then-leaders of the Motion Picture Association and the Recording Industry Association of America both vented angrily about ordinary people getting a say over copyright. Big Media went on a world tour, pushing for site-blocking laws that led to the same problems [Italy etc] of censorship and over-blocking in many countries that U.S. users had mostly avoided.

Now, they’re trying again. Major media companies are pushing Congress to pass new site-blocking laws that would conscript internet service providers, domain name services, and potentially others to build a new censorship machine. The problems of overblocking and misuse haven’t gone away—if anything they’ve gotten as ever more of our life is lived online. The biggest tech companies, who in 2012 were prodded into action by a mass movement of internet users, are now preoccupied by antitrust lawsuits and seeking favor from the new administration in Washington. And as with other extraordinary tools that Congress has given to the largest copyright holders, site-blocking won’t stay confined to copyright—other powerful industries and governments will clamor to use the system for censorship, and it will get ever harder to resist those calls.

It seems like lawmakers have learned nothing, because copyright law is again being written in secret by a handful of industry representatives. That was unacceptable in 2012, and it’s even more unacceptable in 2025. Before considering site blocking, or any major changes to copyright, Congress needs to consult with every kind of internet user, including small content creators, small businesses, educators, librarians, and technologists not beholden to the largest tech and media companies.

We can’t go backwards. Copyright law affects everyone, and everyone needs a say in its evolution. Before taking up site-blocking or any other major changes to copyright law, Congress needs to air those proposals publicly, seek input from far and wide—and listen to it.