We can't win by repeatedly compromising between the status quo and the extremist positions adopted by the MAFIAA. The best we can do is lose more slowly. To win, we need to take the offensive legislatively as well as technologically. I tweeted 25 proposals for this yesterday; here are a couple:
• Instead of fighting to keep DMCA's safe-harbor provisions, let's work to expand them. For example, make filing a false notice costly for the filer: provide a civil cause of action to the speaker whose speech is squelched, with statutory damages of, say, US$3000.
• Legalize noncommercial copyright infringement completely, as long as proper credit is given. The current copyright law was written over the course of 200 years with the idea that it was regulating the commercial activities of publishing companies, and it's far, far too complex to expect ordinary people to understand, particularly in relation to their hobbies. But over the last 30 or 40 years, it's accidentally come to apply every time you SMS your friends or celebrate a birthday in a restaurant. Laws should codify and enforce social norms, not contradict them. This proposal would bring copyright law in line with current social norms among the YouTube set.
• The NET Act redefined "commercial gain" to include the expectation of receiving copyrighted works. Repeal that, because otherwise it criminalizes BitTorrent. (It was actually enacted in order to criminalize David LaMacchia's open-access FTP site, which was a sort of mid-1990s version of MediaFire or DropBox.)
• Require all software developed under government contracts to be released as open source unless it's classified. Taking taxpayer money and investing it in the creation of privately-owned capital goods, such as valuable software copyrights, is straight-up corruption, bordering on embezzlement. If the taxpayers paid for it, they should have the right to use it, as long as that use doesn't interfere with the use it was built for.
• Eliminate FCC device approval for license-free bands like ISM 2.4GHz; prosecute only if illegal emissions occur. This would open up an immense space for hobbyist experimentation in new means of communication, and additionally make it a lot easier to get Wi-Fi cards working on Linux, since right now manufacturers claim the FCC forbids them from providing source to their radio firmware.