David Brooks had an interesting column earlier this week in which he asked, “Why aren’t there more liberals in America?” According to Gallup Poll numbers, about 41% of Americans self-identify as conservative, versus 36% moderate and 21% liberal. This strikes Brooks as a bit of a puzzle, since the financial crisis and the economic downturn would seem to support liberal beliefs in some ways. Brooks’s answer: “Americans may agree with liberal diagnoses, but they don’t trust the instrument the Democrats use to solve problems. They don’t trust the federal government. A few decades ago they did, but now they don’t. Roughly 10 percent of Americans trust government to do the right thing most of the time, according to an October New York Times, CBS News poll.”

Brooks goes on to speculate about the basis for that distrust: “Why don’t Americans trust their government? It’s not because they dislike individual programs like Medicare. It’s more likely because they think the whole system is rigged. Or to put it in the economists’ language, they believe the government has been captured by rent-seekers.”

This all sounds very familiar. It’s essentially the basis of the current critique of copyright law: that Congress has become beholden to a few stakeholders, and as a result modern copyright law has become unmoored from any legitimate purpose and now simply apportions rents to favored dinosaur industries.

But even that description of the situation is not dark enough.

The House Judiciary Committee held a markup hearing on the Stop Online Piracy Act, H.R. 3261, the bill that is quickly shaping up to be this year’s big copyright battle. I’ve written two prior posts on the bill, Part I and Part II.

This is a good opportunity to recap where I came out at the end of my last post: SOPA in its then-current form was very troubling. The most troubling part was Section 103, which seemed to have been drafted with two inconsistent goals in mind, as if the co-authors were Dr. Jekyll working alongside Mr. Hyde: on the one hand Section 103 appeared to offer limited supplemental remedies in suits brought under existing copyright and trademark law, and on the other it appeared to significantly modify existing law by creating a free-form cause of action and a notice-and-takedown regime that went far beyond what the DMCA enacted thirteen years ago. For the reasons I stated in the post, I believe that the former reading — the Jekyll version if you will — had to be the correct one, because both the alleged new cause of action and the apparent notice-and-takedown regime were radically under-specified. I’m still concerned that critics of the bill are cementing an overly broad reading of it — the Hyde version — by not even acknowledging the Jekyll reading as a possibility. (This is akin to a concern that copyright scholar Jessica Litman has recently expressed as well, that copyright critics may ironically worsen the doctrines they are concerned about by asserting the most damaging interpretation.)

In addition to all that, SOPA as introduced had an overly broad scope for (what I argue are) the supplemental remedies — they appeared not just to apply to sites infringing in the U.S. but as a practical matter immune to traditional means of enforcement — the so-called foreign “rogue sites” — but to any website, anywhere, even one that a U.S. court would have no problem directly enforcing a preliminary injunction against with contempt sanctions. That is, even if Section 103 were amended to make clear, as I believe it should be, that the remedies involving domain names and ad networks are supplemental means of enforcement, it did not expressly limit itself to situations where there is a need for such extraordinary remedies. I would hope that courts would nevertheless apply such limits anyway, but that might be asking a lot from a court unfamiliar with the policy debates.

In advance of today’s hearing, SOPA’s main sponsor, Rep. Lamar Smith, offered a “manager’s amendment” to the bill making several changes. Does Smith’s amendment fix the above problems? Yes and no.