In Silicon Valley’s view, current law, the Digital Millennium Copyright Act, is doing its job. But content and media firms don’t feel that way and would like to reopen the debate. But I don’t see another frontal assault like we saw with SOPA.
How do you think companies and government leaders should deal with the problem of illegal piracy of Internet content?
There is no one rifle-shot solution. Business models have to adapt and partnerships need to form between tech and content companies. That helps the whole ecosystem.
There will be interesting issues around Internet television, and Aereo’s case in the 2nd Circuit Court in New York illustrates big questions that remain on this issue. I can see this case or similar cases going to the Supreme Court. It is a big issue because it impacts the roles and responsibilities of cloud computing for the storage of content.
What are the Internet TV trends Washington policymakers will watch?
There is a tremendous shift in viewing habits underway. Users are increasingly not satisfied with linear television. They want to be able to watch content at any time and place of their choosing. You’re seeing businesses try to challenge some traditional marketplace arrangements. The moves by Cablevision and Verizon to challenge programmers are very interesting.
But there is not a massive amount of [cable] cord-cutting yet — it’s more like cord-shaving. Users aren’t satisfied with multiple tiers of content but are more satisfied with basic TV tiers and supplementing that with Netflix, Hulu or Apple.
What is happening outside the U.S. that has Silicon Valley worried?
There is a challenge for these companies to operate in a borderless medium that is the Internet. They want to facilitate communications around the globe and put servers around the globe. But from a legal standpoint, the laws of other countries aren’t as friendly as those in the U.S.
Europe is considering data protection laws that will affect Internet companies and their ability to put servers in those countries. If you have wildly inconsistent laws in different countries, it becomes incredibly hard for Internet companies to operate globally.
Is Europe of particular concern?
The developing world is behind Europe. As those developing nations look to creating their own rules and regulations, they will not only look to the U.S. but to Europe, too.
Part of what needs to happen is a discussion that involves respect for legal traditions. For example, we have the First Amendment in the U.S., but the rest of the world doesn’t. In the U.S. we have Fair Use [in copyright law]; the rest of the world doesn’t. I believe we have to educate those people in respecting our traditions, and we are just at the beginning.
And you are seeing increasing examples of other jurisdictions, other nations, using cybersecurity and privacy as a stalking horse to propose local protectionism regulations.
What do you hear most often from Silicon Valley about Washington?
Every general counsel I meet with in Silicon Valley is hugely focused on software patent trolls. They will look to Washington to address that problem, maybe through legislation that stops frivolous lawsuits.