The Senate Judiciary Committee will hold a hearing Thursday, July 22, on the bill. Testifying will be representatives of the entertainment industries and the consumer electronics producers.

The bill is so broadly conceived that it could undermine the U.S. Supreme Court ruling in Sony Corp. vs. Universal City Studios, commonly called the 1984 “Betamax case.” That 5-4 decision ensured that the videocassette recorder would be legal and ultimately made the world safe for home recording and archiving of all kinds.

More fundamentally, the bill reflects a serious misunderstanding of peer-to-peer technology specifically and the effects of technology generally. It is the worst kind of policy intervention: destined to cause more trouble than it solves and certain to stifle technological innovation. It will make lawyers richer while failing to help the copyright holders it is supposed to save.

The bill is aimed at a handful of companies that provide interface software for peer-to-peer file-sharing services such as Kazaa and Grokster. Millions of people offer hundreds of millions of music files in the popular MP3 format over the Internet. These companies, which help people find the files they seek, have found a legal safe haven because a federal court concluded last year that they are designed in such a way that they cannot be responsible for how their clients use the system.

In a previous case involving an early MP3 player, a federal court ruled that playing technology itself can’t be illegal under the standards the court set in the Betamax case: The technology is capable of “substantial non-infringing uses” and thus should be allowed.

While industry lobbyists swear they would go only after the proprietors of peer-to-peer services, they don’t have much credibility. After all, they have already taken the makers of videorecorders and MP3 players to court. Why wouldn’t they do all they could to fix other technologies to behave as they wish?

“Enabling technologies have nothing to worry about as long as they are not inducing other people to violate the copyright law,” David Green, a vice president of the Motion Picture Association of America, told the Washington Post. And Mitch Bainwol of the Recording Industry Association of America told the New York Times that his organization would not go after what he called “neutral technology” like the personal computer.

Here’s the problem: No technology is neutral.

The idea of technological neutrality is most succinctly expressed by the slogan “Guns don’t kill people; people kill people.” The slogan may be simplistic, but the theory is pretty powerful. It influences many of our debates about technology and policy, from guns to automobiles to encryption.

The problem with technological neutrality is that people create technologies and people use technologies. And people are not neutral. They have cultures and values and expectations.

Technologies reflect ideologies. They reflect the values embedded in them. They alter the environment in which they operate. They enable people to imagine using them in particular ways. There is nothing deterministic about technologies. A gun in the first act need not go off in the third.

But technologies offer possibilities. And possibilities guide options. The bumper-sticker version of this theory of technology goes something like “To a man with a hammer everything looks like a nail.” The man might not ever slam the hammer. But he thinks about it.

The peer-to-peer software is but one necessary part of an elaborate system that enables people to share millions of files. Kazaa does no copying. It’s just a search engine. The entire system of unauthorized distribution implicates the personal computer (which, after all, is a very powerful copy machine), the high-speed modem service, and the protocols that underpin the Internet itself.

Each of these technologies contributes to the menu of potential uses that such a system enables, and thus the “technological imagination” of users. For the past four years, hundreds of millions of connected people around the world have been able to say, “What if I could search for music like never before?” or, “Imagine contributing to a vast library of both odd and obvious cultural choices.” It’s not surprising that many of those empowered by these technologies choose to use them.

All these technologies — especially the personal computer — are much more powerful and customizable than any previous communication technologies. And they are all designed to foster irresponsibility. That does not mean all users are irresponsible, just that those who do not wish to be held responsible for their expressions most likely will not be. Internet users understand this intuitively. So they misbehave.

Because all the elements of the system are basically anarchistic, irresponsible technologies, the only way to address this phenomenon technologically is to do so systematically. That means re-engineering every step in the process, every device in the flow.

If we don’t want to radically alter the personal computer and the Internet itself, there is not much the Senate or the entertainment industry can do about file sharing. Users who are accustomed to this new technocultural environment will simply find another way. They will migrate en masse to other services like Gnutella, ICQ, FreeNet, and BitTorrent.

Recently the civil liberties group Electronic Frontier Foundation worked up a mock complaint that might be issued if the Induce Act becomes law. The complaint makes it clear that Apple would be liable for selling the popular iPod music player.

Remember: When iPods are illegal, only criminals will have iPods.

There are some formidable obstacles to this dramatically efficient vision. First and foremost, there is the up-front cost. No one wants to pay the billions of dollars it would cost to retrofit theatres with digital projectors. Until there are enough digital projectors, there is no incentive to distribute digital prints. Human beings are the most formidable of these obstacles. Actors, directors, and editors have some power in Hollywood. And they do not want their labor replaced or their status as artists compromised any more than it is already. Studios already issue different cuts of films for different foreign markets and airline viewing. But they do so after negotiations with directors and editors, and after the films have either failed or succeeded in domestic release.

As Hollywood creeps toward this digital vision, George Lucas leads the pack. His last two films, “Star Wars Episode I: The Phantom Menace” and “Star Wars Episode II: Attack of the Clones,” were filled with digitally generated extras where blood actors might have served in the 1970s. Several major characters, including the inexplicable Jabba the Hutt and the blatantly racist and annoying Jar Jar Binks were (fortunately) digital creations. The same technology that allowed Lucas remarkable control over his characters gave his fans the opportunity to undermine his control of them. Early in 2001 rumors began flying around Internet sites and chat rooms that someone had taken “Episode I: The Phantom Menace” and created something called Episode I: The Phantom Edit. The Phantom Editor, who remains incognito, had shortened the film by about 20 minutes, removing most of the scenes that focused on Jar Jar Binks. Without dialogue, Jar Jar Binks was a much less offensive character. In addition, the Phantom Editor removed some of the stilted dialogue and awkward verbal gestures that Lucas had installed to appeal to children. Soon after the rumors of the edit started spreading, copies began appearing in VHS form at Star Wars and science fiction conventions. And digital copies flew across both from peer to peer and via peer-to-peer networks like Gnutella. The 700 megabyte DivX file took many hours to download even with the fastest connection available. But the demand for the file was not about getting “The Phantom Menace” for free. It was about seeing a better version and celebrating the anarchistic revolution that had allowed a lone film critic to take control of the content and connect with thousands of others who shared his appreciation of the Star Wars saga. Lucas was reportedly curious about the cut. But his company, Lucasfilm, warned fans that sharing these copies and files constituted copyright infringements of the original film.

Other directors were not so curious or amused by the technological powers and habits available to those who are not part of the Hollywood system. In late 2002 the Directors Guild joined the major studios in a lawsuit against a Denver-based company called CleanFlicks, which edits potentially offensive material from Hollywood videos. These “family friendly” edits satisfy a market of religious and conservative families that Hollywood has not been willing or able to serve very well. Two issues lie at the heart of this conflict. First, there is a principle within American copyright law that copyright holders — in this case, the studios — control the right to create “derivative works” of their holdings. Second, there is the directors’ appeal to their “moral rights,” the right of a creator to control the reputation and integrity of her works. Moral rights are not central to American copyright law, largely because American law appreciates the process of revision and play with older materials (and the power of corporations to have the ultimate authority over content), but they are strong in French and continental artistic law.

Imagine if we could go beyond exercising control of our individual critical faculties. Suppose, in addition to reading things differently, we could re-write them. Imagine if we could make the most powerful images in our world more to our liking, more relevant to our lives. Would this be such a radical change in our mediascapes and consciousnesses? Until the rise of fixed and legally protected media products like television shows and feature films, humans had the power to adapt and re-use elements of their cultures. American communities quickly adopted Harriett Beecher Stowe’s novel “Uncle Tom’s Cabin” to the local stage and undermined its abolitionist messages. Uncle Tom was soon a stock comic character in minstrel shows. Stowe gave birth to Uncle Tom but America kidnapped him, changing him into something she would neither recognize nor celebrate. Those are the risks of releasing messages upon the world. An author cannot control how a character, idea, or plot will be read, re-fashioned, or criticized. But copyright law’s restrictions on the production of derivative works and the integrity of the original work alter that dynamic somewhat.

More than copyright, technological barriers to access to material limits what audiences can do. But the Phantom Edit shows that this barrier is crumbling quickly. Consider perhaps the most extreme case of pirate editing: the Goblin edit. The Goblin is an amateur Russian digital video editor named Dmitri Puchkov. Not satisfied with merely watching illegal copies of Hollywood films, he has differentiated some products within the rather crowded Russian video market. The Goblin re-dubs the films into colloquial Russian, trumping the rather unsatisfying subtitle translations.

The Goblin’s greatest hits are the re-dubs of the first two of the “Lord of the Rings” trilogy. He turned Frodo Baggins into Frodo Sumkin and the rest of the “good” characters into caricatures of incompetent Russian officials. The evil Orcs became Russian gangsters. Gandalf the Wizard constantly quotes Karl Marx. Puchkov originally made the new versions for his friends, but they made copies and spread them widely. Pirate video merchants all over Russia are distributing Goblin edits, which are in high demand, for about $10. The Goblin is currently working on a Russian “Star Wars” edit. Certainly, by throwing out the old soundtrack and revising the characters completely, the Goblin is producing a fairly new work, one that does not directly compete with the original in the marketplace. No one who wants to watch the original “good” Frodo Baggins would want the Goblin version in its stead. But the real value of the Goblin edit is that it uses a familiar English text and Hollywood production (and New Zealand settings) to comment on Russian politics and society. This is multilayered cultural criticism and revision on a par with the minstrelization of “Uncle Tom’s Cabin,” Woody Allen’s Occidentalization in “What’s Up Tiger Lily?” and Leonard Bernstein’s urbanization of “Romeo and Juliet” into “West Side Story.” It should make some feel queasy and others giggle. It should make everyone pause and think.

What are the implications to the status of Hollywood labor if, as writer Peter Rojas explained, all films are to be considered permanent “works in progress”? Should creativity be reserved for professionals and experts? Or will teenagers in their basements and libraries be able to soup up or strip down the signs, symbols, and texts that make up such an important part of their lives? Will Hollywood, bolstered by the political power of the United States government, be able to dictate the form and format of distribution around the globe? What are the implications for local cultural forms if powerful media companies use law and technology to ossify their advantages? In lawsuits, congressional hearings, and international negotiations, Hollywood studios claim they need maximum and near permanent control over their products to justify the massive investments they make in production, marketing, and distribution. But clearly, the issue is not just a commercial one - it’s cultural as well. Yet the commercial film industry and the governments that do its bidding are willing to go to extreme measures to preserve their global cultural and commercial standing.

And Ginsburg’s opinion did not allow that the purpose of copyright is to encourage future production, not lock up works already created. She ignored the fact that the Sonny Bono Copyright Term Extension Act of 1998 does nothing to “promote the progress” of science or art because it grants no incentive to produce and distribute new works.

So out of despair some might see civil disobedience — hacking and freely distributing songs and films over digital networks — as the only remaining response to the excesses of the copyright regimes and the hold they have over courts and Congress.

While disobedience might be more fun, the power of civil discourse remains. In fact, the ruling gives public interest activists both motivation and ammunition in the continuing battle against the excessive expansion of the power to control information and culture.

As is so often the case, the best rallying cry came from a dissenter in the case. Justice Stephen Breyer wrote: “It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who won existing copyrights. But I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public.” This is the key to any public interest movement: Show that narrow special interests are getting away with everything and the public interest is suffering.

Yet Ginsburg herself aided the public’s rhetorical cause even while ruling against its interests. While dismissing the notion that excessive copyright expansion has severe First Amendment implications, she invoked two of the classic democratic safeguards of American copyright: the idea/expression dichotomy and fair use. Because of these two concepts, Ginsburg concluded, the court need not take the censorious power of copyright seriously.

The idea/expression dichotomy means that copyright does not protect facts or ideas. It only protects specific expressions of facts or ideas. This allows us to cite a fact or idea while criticizing another writer or building on another’s work.

Fair uses are small allowances for the public good, exceptions to the sweeping powers that a copyright holder enjoys. A teacher may invoke fair use, for instance, when showing a film in class. A student uses another’s work fairly if she quotes a small portion in a research paper.

Ginsburg’s expression of faith in the power of the idea/expression dichotomy and fair use does not recognize that both these rights are under attack in Congress and lower courts right now. The motion picture, music, publishing, and software industries are trying to expand their control over the machines in your home to limit the uses you might make of material you have lawfully purchased.

Ginsburg made one more statement that public interest advocates can take to heart and use for their purposes. While dismissing the petitioners’ First Amendment concerns, she wrote, “But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” As a matter of fact, the 1998 Digital Millennial Copyright Act did just that. By outlawing technologies that could break through access controls around digital materials, Congress created a whole new technological regime and a new set of powers for copyright holders to use against scholars, librarians, students and artists. This shift in the locus of enforcement from human relations to hard technology has certainly “altered the traditional contours of copyright protection.”

In the wake of this decision, if Congress and later courts are going to take Ginsburg’s words seriously, they must take fair use and the idea/expression dichotomy seriously. They cannot take them for granted, as so many have in recent years.

The Eldred decision, in the words of University of Buffalo law professor Shubha Gosh, “deconstitutionalizes” copyright, pushing it father into the realm of policy and power battles and away from the principles that have anchored the system for two centuries. That means public interest advocates and activists must take their battles to the public sphere and the halls of Congress. We can’t appeal to the Founders’ wishes or republican ideals. We will have to make pragmatic arguments in clear language about the effects of excessive copyright on research, teaching, art and journalism. And we will have to make naked mass power arguments with echoes of “we want our MP3″ and “it takes an industry of billions to hold us back.”

Back in 1998, when legal scholars and librarians tried to make such arguments, they found they had no army of CD burners and TiVo users behind them. So Congress did not care. What was good for Disney was deemed good for America. Despite the fact that no one has ever made an argument that adding 20 years to copyright benefits the public in any way, Congress acted in the narrow interests of a few against the greater interests of the people. And no one seemed to notice.

Since that time, public awareness of copyright has blossomed. In just the past month the New York Times has run three stories on its front page about copyright. And this evening (Friday), Bill Moyers’ program “Now” will examine the copyright battles in depth. And several important books about copyright have found their ways onto library shelves.

One bill introduced last Congress would allow copyright holders to hack in and disrupt your computer’s ability to communicate with others if they suspected you might be distributing their material. Another bill would require all machines that work with digital code — from microwaves to MP3 players to mechanical pets — to include copy control technology that would restrict their customizability.

And the idea/expression dichotomy is under attack in Congress via a bill to create an entirely new form of intellectual property to protect databases. European database companies have enjoyed this excessive protection for several years now. Yet without similar protection in the United States, American database companies are doing just fine. And the industry is healthier over here than in Europe.

However, a bill filed recently by Rep. Richard Boucher, D-Va., would actually strengthen consumer rights by restoring and clarifying fair use for research and teaching and require media companies to label their materials if they restrict fair uses in any way.

So public interest activists have more options than downloading in despair. We can rally public support for the Boucher fair use bill and can play solid defense against the other restrictive proposals. It won’t be easy, but we have the facts on our side and soon we will have the rhetorical high ground as well.

The vehicles for reform come in many colors. There are rumblings among religious communities that are tired of being harassed for singing protected songs at gatherings and threatened for painting protected cartoon characters on their nursery school walls. Conservative and family groups have taken an interest in technologies that allow them to make and view “clean” edits of Hollywood films. Scholars are increasingly angered by restrictions on research and the high cost of reproducing images. And when consumers find it’s not so easy to use the format of their choice to record all their favorite shows for later viewing or to take their music to the gym they are going to be angry as well.

In response to this growing demand, several organizations have stepped up to speak for the public. Among the earliest to raise the alarms, the Electronic Frontier Foundation remains at the forefront of legal and technological advocacy. Now the EFF is joined by Publicknowledge.org, an advocacy group devoted to protecting the public domain with the same vigilance that the Sierra Club defends wilderness. And some concerned citizens from Silicon Valley have formed digitalconsumer.org to protect users’ rights in an electronic age.

And because the legal front remains hot, we can depend on law students at two clinics to help those who get crushed by the copyright system. Clinics at Washington College of Law of American University and at Boalt Hall at the University of California at Berkeley have been compiling research and writing briefs in important copyright cases.

And at Harvard Law School, the Berkman Center for Internet and Society runs the Chilling Effects Clearinghouse, which documents examples of copyright lawyers run amuck.

None of these organizations — save the EFF — existed in 1998. They are all products of the rise in public awareness created by Lawrence Lessig and his team as they selflessly pursued the case of Eldred v. Ashcroft through the federal court system.

After the decision came down on Wednesday, Lawrence Lessig expressed exhaustion and frustration on his blog. He and the lead plaintiff in the case, Eric Eldred, had been working on this case for four years. But there was no need for either of them to feel dejected.

Their work and words have solidified a popular movement. The movement is certainly not strong enough yet to roll back the copyright term through legislation. But in smaller ways, through a hundred lesser battles we can get Congress and the courts to serve the needs of students, teachers, and citizens instead of Hollywood studios.