ReadWriteEnterprise

The imminent withdrawal of the court order provision (Section 3) from the Senate version - called PROTECT-IP or PIPA - of this year's round of anti-piracy legislation, will very likely doom any chance of such legislation emerging from Congress this year. Although SOPA, the House version, may yet pass with its version of the court order provision intact, any single bill that passes both houses must be a reconciled version of SOPA and PIPA. With Sen. Patrick Leahy (D - Vt.), one of PIPA's co-authors, now advocating further study in the next congressional term, any move by the House this term will largely be for show.

As we begin to emerge from this round of the anti-piracy fight, none of us are particularly any smarter or wiser or more prepared for the next round than we were before. Not only do we lack a better idea of what a solution may be for the future, all of us have, in one way or another, succeeded in misdiagnosing the problem.

What keeps Internet service providers from being responsible for, and perhaps prosecuted for, the content trafficked over their networks is a provision of a law that Web advocates ironically opposed while it was being argued in 1998: the Digital Millennium Copyright Act. As long as ISPs do not take interest in the nature or technical breakdown of that content, then its creators and publishers can't hold them liable for intellectual property theft - this is the "safe harbor" provision.

That law isn't going away any time soon. Meanwhile, the recording and publishing industries - stymied by the ineffectiveness of prosecuting individual IP violators - know that the ISP is the one remaining place where they can attack the problem of IP theft. (Certainly they can't prosecute themselves and their own partners for ineffective security.)