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.)