Michael Froomkin comments:
We vastly overestimated the speed with which non-techies would take up the toys; the growing and enduring dominance of one software platform that didn’t take up the toys; and especially the ability of the empire to strike back via both tech (trusted user) and law (DMCA and worse).
Some time about four or five years ago, somewhere around the Article 2B/UCITA fight, of necessity we switched to fighting defense instead of offense. And don’t get me wrong, that defense is important. But it’s still defense.
I’ve been mulling over this a little, and have several parts of an incomplete response.
The first part is that our decision cycle is shorter, and our actions are more diverse and challenging than those of the copyright cartel, who seem to choose a target, and sue them. And the reality is that, while those lawsuits are very annoying to those who are targeted, not a single type of technology has been suppressed by lawsuit. Napster’s gone, but a dozen replacements have shown up. DVD Jon is still releasing code. The Freedom Network is gone, but we have Tor and mixminion. Apple releases an update to iTunes to break the downloader, but there are a dozen others already out there, not affected.
Our side, the side of free speech, democracy, and creativity, has, you know, creativity on our side. People get ideas and build them. We have library-mobiles, Project Gutenberg, Google Library, Amazon search inside a book, and lord only knows what else. They have a well funded lobbying machine, but guess what? It’s only working inside the beltway. We have artists putting their songs on a Wired Creative Commons-licenced CD; we have fiction and non-fiction coming out under the CC, and remixes and mashups of it that cause the first authors to cackle with glee.
We have volunteer programmers creating the tools they want to use, and those tools are never going to go away. They have $400 an hour lawyers bilking them on a losing strategy. We have bit-torrent taking 35% of all internet bandwidth. We have thousands of web proxies left open, accidentally or intentionally, that let people around the great firewall of China. We have Google’s cache, the internet archive, and a million blogs to make content available to everyone who wants it.