All Eyes On US Stop Online Piracy Act (SOPA): Fate Of Bill Now Unclear

As of today, no one is really sure what the future holds for the controversial internet anti-piracy bills in the United States.

The Stop Online Piracy Act (SOPA) (HR 3261), along with its Senate counterpart, the Protect IP Act (PIPA) (S. 968), would expand the ability of law enforcement and copyright holders to shut down websites, or prevent business with sites outside the US that host pirated content or traffic counterfeit goods. One of the most hotly contested provisions would allow US law enforcement to force internet service providers (ISPs), search engines, online payment processors, and others to use the internet domain name system (DNS) to prevent consumer access to “rogue” sites outside of the United States. Critics argue the language in the bills allows for activities akin to censorship promulgated by governments in China and other countries in which free speech is suppressed.

All eyes are on the Senate: Senate Majority Leader Harry Reid, a Nevada Democrat, told the “Meet the Press” television talk show Sunday that he’s sticking to the plan to consider PIPA on the Senate floor on 24 January despite the upheaval surrounding the bill. “I think we need to have this a winner for everyone, not just the content people,” Reid said. “I’m going to do everything I can to get that done” and push out a “fair” bill, he added.

On the House of Representatives side, Oversight and Government Reform Committee Chairman Darrell Issa, a California Republican, cancelled a hearing scheduled for tomorrow that would have focused on the impact of the DNS and search-engine blocking provisions after SOPA sponsor Rep. Lamar Smith said he would strip out the DNS-related provisions of the bill. Issa said “much more education” is needed for members of Congress about the workings of the internet before a workable solution can be reached.

“While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House,” Issa said in a 13 January press release, noting that House Majority Leader Eric Cantor said SOPA won’t move to the House floor without “consensus.” Cantor “assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote. The voice of the Internet community has been heard.”

House Judiciary Committee Chairman Lamar Smith, the Texas Republican who authored the House bill, Tuesday afternoon said he expects his panel to continue the SOPA markup next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” Smith said.

There had been some talk of a filibuster in the Senate to prevent PIPA from moving forward. Sen. Ron Wyden, an Oregon Democrat, earlier this month reiterated his vow to filibuster the bill during a town hall event, and may use his floor time to read aloud names of groups opposing the bill in an attempt to delay a vote.

Meanwhile, tomorrow (18 January), thousands of websites such as Reddit, BoingBoing, Free Press, Wikipedia, and others plan to “go dark” (#SOPAblackout on Twitter) in protest of the bill. Google planned to post a message to its search page. Some critics are also organising a flood of censored posts on Facebook to coincide with the blackout. People are also taking to Twitter to ask for simple blackout codes so their sites can participate in the day of protest.

“The uncertainty and the compliance burden … would just make it unprofitable to run Reddit and we would shut down,” Erik Martin, general manager of Reddit, told reporters on a conference call Tuesday. “As far as what the internet would look like … they’re [venture capitalists] just not going to be funding companies in this area. …It has a chilling effect.”

But not all technology companies are on board with the blackout. Twitter, for one won’t join, and Facebook is not encouraging the move. Chris Dodd, former senator from Connecticut who is now chairman of the Motion Picture Association of America – a group pushing for SOPA passage – blasted the planned blackout as “irresponsible.”

“Some technology business interests are resorting to stunts that punish their users or turn them into their corporate pawns, rather than coming to the table to find solutions,” Dodd said.

“It is ironic that a website dedicated to providing information is spreading misinformation about the Stop Online Piracy Act. The bill will not harm Wikipedia, domestic blogs or social networking sites,” Smith said. “This publicity stunt does a disservice to its users by promoting fear instead of facts. Perhaps during the blackout, Internet users can look elsewhere for an accurate definition of online piracy. It’s disappointing that some SOPA critics appear not to have read the bill. The Stop Online Piracy Act only targets foreign websites that are primarily dedicated to illegal activity. It does not grant the Justice Department the authority to seek a court order to shut down any website operated in the U.S.”

Vermont Democratic Sen. Patrick Leahy, who sponsored the Senate bill, is drafting a manager’s amendment to slow down the more controversial provisions regarding DNS to focus on “the other important provisions in this bill, which are essentially to protecting American intellectual property online, and the American jobs that are tied to intellectual property.” He slapped at planned attempts to prevent debate and a vote on the bill by certain senators.

“Let us be clear: the vote scheduled for January 24 is a vote to begin an open debate on how to address this issue, which is crippling the American economy and threatening thousands of American jobs,” Leahy said in a press release. “Saying no to debating the PROTECT IP Act hurts the economy. It says no to the American workers whose livelihoods depend on intellectual property-reliant businesses. And it says yes to the criminals hiding overseas stealing American intellectual property and selling it back to American consumers. All Senators should agree that this is a debate we must have, and we should have, and should support cloture on the motion to proceed on January 24.”

Also, a handful of Republican senators on Friday wrote to Reid [pdf] asking for the chance to introduce amendments to the bill, stressing that they may need more time to debate other than what is allotted on 24 January.

Rep. Smith is removing the similar provision in the House bill that requires ISPs to block access to certain foreign websites. But Smith praised the other elements of the bill, indicating it is still moving forward, saying: “We will continue to look for ways to ensure that foreign websites cannot sell and distribute illegal content to US consumers.”

Even the White House, which came out in opposition to these provisions over the weekend after its analysis of some of the DNS filtering language in the bills suggested “that they pose a real risk to cybersecurity and yet leave contraband good and services accessible online,” still urged passage of the broader bill.

IP officials in the Obama administration also called on all private parties to adopt voluntary measures and best practices to reduce online piracy.

“Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small,” Victoria Espinel, intellectual property enforcement coordinator, Aneesh Chopra, US chief technology officer, and Howard Schmidt, special assistant to the President and cybersecurity coordinator, said in a statement, here. “Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected.”

“We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet,” they said. “The administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response.”

Groups like Public Knowledge and other grassroots groups opposing SOPA said Tuesday that lawmakers’ change of heart came after constituents demanded meetings with their congressmen over the winter break, critical of the bills. Before the recent holiday break, groups like the US Chamber of Commerce, leading the charge, along with other content creators, were confident the votes were there to easily pass the bills.

Josh Levy, internet campaign director of Free Press, said Tuesday that along with the DNS filtering provisions, his group would like to also see removed from the bills the private right of action, language that could give immunity to intermediary parties who take voluntary actions against infringers, and include definitions that actually target the “clear, criminal infringers who have no presence within the United States.” Martin of Reddit concurred, saying just removing the DNS provision isn’t enough and “would not give them [lawmakers] political coverage from the tech community.”

SOPA=’International Trade War’?

An alternative bill sponsored by Sen. Ron Wyden, an Oregon Democrat, and Issa, called the Open Act [pdf], would make the US International Trade Commission the arbiter of complaints about non-US websites linked to piracy. But the US Chamber of Commerce, one group leading the charge in favour of SOPA, said this alternative is not viable.

“What the chamber’s looking for in rogue sites legislation is something that’s effective with dealing with rogue sites problem,” Steve Tepp, chief intellectual property counsel for the Chamber, told Intellectual Property Watch. SOPA and the Protect IP Act “are much more preferable to a process that takes 18 months to reach a conclusion even if the ITC decides to take the case. That’s not effective.”

“There’s a lot of problem with that bill [Open Act] but fundamentally, the fact is, this is ongoing theft and that makes it, I think, inconsistent with the type of the approach that the ITC has used – albeit successfully – in other contexts.”

Some also believe SOPA will have far-reaching, negative international implications, as well. Rep. Jared Polis, a Colorado Democrat, told Intellectual Property Watch that SOPA will fracture the internet and send a message to international allies that the US doesn’t have confidence they can shut down rogue sites on their own, so the US will do it for them. “This is like sticking your head in the sand and hoping the problem goes away instead of working with your friends to fix it,” he said.

“If the US passes SOPA, it will lead to an intellectual property trade war that will work to the detriment of rights holders across the world,” Polis said. “The precedent that the US would be setting would encourage other countries to disable legitimate American sites, particularly those with user-generated content.”

“Instead of addressing the problem of foreign ‘rogue’ websites by working with other countries through diplomatic and trade channels as the OPEN Act would,” said Polis, “SOPA tries to shut down these websites through DNS blocking – just as countries like China use to censor their citizens.”