Election’s Impact on Info/Law

Now that yesterday’s elections are over, punditry focuses on the impact of the Democratic takeover of the House of Representatives and the increasingly likely (at this writing) Democratic majority in the Senate. Not much of it considers the impact on intellectual property and internet policy, though, does it? That’s why you come to this here Info/Law blog! So, here is some rampant (but, I hope, reasonably well-considered) speculation.

In the House, it appears most likely that Rep. Howard Berman will take over the chairmanship of the subcommittee that handles intellectual property law. As National Journal’s Congress Daily noted, we can expect him to “protect his nearby Hollywood interests by cracking down on piracy and protecting against copyright infringement of TV, music and movie productions.” In general terms, that means restrictive IP law that favors content producers and rightsholders and hostility toward flexibility or expansion of fair use. That’s the bad news for Info/Law. The good news is that Congressman Ed Markey, a champion of consumer-oriented telecom and internet policy (and sponsor of the network neutrality amendment in the House earlier this year) will take over the subcommittee with the most power over these issues; the full Committee on Energy & Commerce will be helmed by John Dingell, who is pretty good on telecom as well. In addition, Rick Boucher, another consistent advocate for balanced information policy, particularly fair use and library concerns, will be a very senior Democrat on the Judiciary Committee (and possibly on Berman’s subcommittee). Finally, there is reason to hope education-oriented Democrats like Dale Kildee may pay attention to the serious and growing problems relating to educational uses of digital content.

The Senate may see less change. Assuming the Democrats control the chamber 51-49, Senator Leahy will take over the Judiciary Committee. He has already established a relatively moderate bipartisan partnership with Senator Hatch on Info/Law issues, and I would expect that to survive any shuffling of their seats on the podium. Patent reform might become a higher priority under a Leahy chairmanship than it was under the current chairman, Senator Specter (but that might have happened anyway, given growing pressure from industry and the IP bar). If the Senate stays 50-50, Leahy would not be chairman but he and Hatch would remain the key players on Info/Law matters. (Also, while a 50-50 split would formally leave the Senate under Republican leadership because the Vice President breaks ties, when it last occurred in 2001, the parties reached a power-sharing agreement evenly dividing most committee assignments and resources between them. Even if Leahy is not chairman, he would have more clout in committee than he does at present.)

UPDATE: Tim points out in the comments that William Patry also wrote a post about the impact of the election on IP law. Patry is unsure that Congressman Berman will be chair. I am pretty confident though (my reasons after the jump).

As I commented on Patry’s blog:

I think Berman’s chairmanship of the IP Subcommittee is all but assured. The best guide is his consistent past choice to be the ranking member (that is, top minority member) on that subcommittee. In general, each member can hold only one subcommittee chair. As the second-ranking Democrat on both Judiciary and International Relations, Berman pretty much has pick of the litter among subcommittees in both committees. He has always chosen the IP seat (becoming second-ranking Democrat on several International Relations subcommittees as well).

I admire Berman, but I do not consider him balanced on IP issues. That said, regardless of whether Berman or Boucher is the chair, the other one will be influential on IP issues in the Judicary Committee. Maybe between them there is something like equilibrium. (Boucher, by the way, will be entitled to a coveted subcommittee chair on the Energy and Commerce Committee, which is where he has chosen to be a ranking member in the past. That committee works both on telecom/internet issues and on energy and pollution matters vital to his coal-mining western Virginia district.)

10 Responses to “Election’s Impact on Info/Law”

  1. Bill, you beat me to the punch with your post (which is, in any event, a better summary than I would have been able to draft, as befits your legislative background). I’ll just add a few points to your own.

    First, I think you’re correct not to expect major changes in either house of Congress. Info/Law issues don’t break down easily along traditional party lines, and (as I’ve previously lamented) there’s a relatively small constituency that views technology regulation as a “hot button” issue. Not that I’m necessarily saying that these issues necessarily belong on the average citizen’s radar screen; in a world preoccupied with life-and-death issues it’s hard to be too critical of people who don’t care overmuch about, say, file-sharing. This is one of those areas where I think we can say, plus ça change, plus c’est la même chose. Will the 110th Congress pass the Digital Media Consumers’ Rights Act, enact strong net neutrality legislation that preserves the end-to-end principle, or extend the internet access tax moratorium? Hard for me to see that the 110th is likely to be any different from the 109th in this regard, notwithstanding the change in party control.

    On your point about the possible chairmanship of the House IP subcommittee, see Bill Patry’s post.

  2. More election-fallout commentary at TechDirt and Boing Boing.

  3. Congressional elections and copyright reform: new Dem IP chair…

    BoingBoing reader Kevin says the new chair of the subcommittee on Internet and IP is in the pocket of the MPAA and RIAA. Snip from Kevin’s blog post: In the wake of the Democratic win in the House of Representatives, some chairs will be rearranged. De…

  4. You have missed a major fact:

    Rep. John Conyers will take over the full Judiciary Committee. He’s the author of the analog hole bill, and a slew of other things for the RIAA.

    You can spin this all you want, but if you look at Dan Glickman of the MPAA’s comments, it says something a bit different:

    “I’m trying to contain my joy,” MPAA chairman and CEO Dan Glickman told The Hollywood Reporter.

    http://today.reuters.com/news/articlenews.aspx?typ e=industryNews&storyID=2006-11-09T091511Z_01_N0945 8311_RTRIDST_0_INDUSTRY-DEMOCRATS-DC.XML  reuters.com]

  5. A:

    You are right about Conyers. I agree that Conyers and Berman together are not good news in the Judiciary Committee and IP Subcommittee (though Boucher and Rep. Zoe Lofgren will be fairly senior and able to counterbalance them somewhat).

    While I admire Conyers and Berman in other ways, I don’t favor most of their positions on Info/Law issues. That was, I hope, the bottom line of my original post.

    That said, the news is a little better in the Senate and a good bit better in the House Energy & Commerce Committee.

  6. How will the Dem sweep affect IP and tech law?…

    A little better, a little worse, according to William McGeveran. In the House, Net neutrality champion Ed Markey (D-Mass) will chair an Internet subcommittee. But Hollywood whore Howard Berman (D-90210) will chair the IP subcommittee. Jack Valenti migh…

  7. […] UPDATE: Also, Siva Vaidhyanathan points to William McGeveran’s analysis of the election’s impact on IP and technology law. Siva will have his own column on the impact on the Internet soon… […]

  8. Blawg Review # 83…

    Election Law is pleased to host Blawg Review # 83. As with last week’s Blawg Review by Ed Still at Votelaw, this Review focuses on election law, in an effort to law blog the vote. Before getting to this week’s……

  9. […] Speaking of legislators, since the Democrats will control the next session of Congress they will be in charge of all of the committees and subcommittees. Of particular interest is the leadership and composition of the House Subcommittee on Courts, the Internet, and Intellectual Property. The Democrats offer leadership to committees by seniority. So Howard Berman, representative of California’s 28 district, will have right of first refusal. As perhaps befitting one who represents many who work in or close to the film industry, he is a strong proponent of strong copyright laws and the rights of copyright holders. If he were to become chair of this subcommittee, the one that has taken the most interest in how universities and colleges respond to this challenge, I do not think he would be sympathetic. As our institutions are by nature slow to change, generally respectful of students’ rights and privacy (how many times have we told one another that “en loco parentis is dead!” ?), and extremely independent, we could be putting ourselves into a bad position with Rep. Berman as these traditional strengths could be viewed as resistance and refusal to act. […]

  10. […] I wrote when the Democrats took over Congress in 2006, these are not usually partisan issues and a switch in party control did not herald much […]