They are now entering a particularly aggressive phase, suing holders of copyright for the temerity of asserting their rights under law. As one violator who is suing Universal Music Publishing Group for “abusing copyright law” puts it: “I don’t like being made to feel afraid, and I don’t like being bullied.” Or as a couple who make their living by pirating copyrighted images states: “They think we are just some country bumpkins they can push around. This is our livelihood, and we stick up for ourselves.” These kinds of people are aided, abetted, and stimulated by groups such as Public Knowledge, Public Citizen, and the Electronic Frontier Foundation. With the exception of Public Citizen, in these organs the power of Silicon Valley is grafted onto a “progressive” outlook by means of what progressives used to love to call (though perhaps not anymore) interlocking directorates. In regard to companies that take action against the piracy of their copyrights, a representative of Public Knowledge says: “They like to accuse their customers, the music fans and TV fans out there, of not respecting the law, but I don’t think they respect the law.”121 (If your customers don’t pay, but, rather, shoplift, they are no more your customers than your burglar is your guest.)
As even a cursory observation of politicians confirms, power makes people particularly vulnerable to the fault of human nature that tells them that if something can be done it should be done; that if there is a desire it should be fulfilled; that if there is a hunger it should be satisfied; that if there is an opportunity it should be taken. The powers in this case are the gifts of modern life, the sheer capabilities of the new technologies, and, not least, the money and success that have concentrated in the hands of the owners and directors of the new systems and machines.
The theater in which they maneuver has until now been primarily that of litigation, where they are met by corporations with interests in intellectual property. But they are both fresher and smarter than the old corporations struggling to suck air out of the previous paradigm, and their next move will almost certainly be to expand the battle to Congress, where, after defeat in the courts, they now realize the power of decision rests. They have more than enough money to buy off Congress, which as everyone knows can be had for a song, but there they will be met by an almost equal power more experienced in lobbying and cajoling. There, however, the corporate defenders of copyright (distinguishable from the corporate attackers of copyright by very little except that they are accidentally on the right side) will begin to run out of options. And there they will appear embarrassingly sclerotic, and may well lose.
They will have won in the courts, yes, and they probably will tie in lobbying and bribing Congress—which would ordinarily be enough for them to claim victory, for to be victorious the opponents of copyright have the added burden of altering the status quo. But the opponents may sweep in from the flank and catch the old guard unaware with a decisive stroke. What is the flank? Where is the vulnerability that the defenders have not taken sufficiently into account, much less fortified, as they deploy their lawyers and lobbyists? What will move the stalemate?
Congress has the ultimate power of decision, and the ultimate power over Congress is not influence or money but public opinion. The Left, the Right, and everyone in between look at Congress and they see the surface action in ordinary circumstances—money, influence, party interest. True, this is how it works, and it is how the wise and cynical alike (assuming they are not the same) will tell you that it works. But, no matter how worldly wise, cynical, and sure they may be, when public opinion coalesces, see how they run.
How often supremely confident politicians and their handlers are dethroned by this sometimes wonderful and sometimes terrible flood, and of the two sides in the question at issue, the only one working the currents, the winds, and the waves of public sentiment is the one that knows well how to ride a wave, because it has ridden one to where it is and is intoxicated with the thrill of being there.
With their agility, overflowing capital, and huge audiences, the new industries—Google alone—can shift public opinion and succeed in crippling or destroying copyright, which by its very nature is fragile and dependent upon the kind of outlying political consensus that in the modern age can rapidly be shifted by a patient and devoted minority able to gnaw like a rat. This would radically alter the culture as we have known it. The standard counter to a concern of this nature is that cultures, language, art, and anything anyone can think of to supplement the list, evolve; and that deploring the factual trajectory of things makes one reactionary, a dinosaur, rigid, unimaginative, impotent, a fascist, and a chipmunk. But one need not be a Nazi brontosaurus to question the trajectories of one’s time if indeed one’s time produces people who think their grandchildren are their ancestors. I return to this example out of continuing astonishment, but it is accurately representative. At a rest stop in Maryland not long ago, I heard a high school girl ask her father where they were “now” (perhaps she was related to
