December 13, 2011 10:17am PT by Eriq Gardner
New Version Of 'Stop Online Piracy Act' As Controversial As Ever (Analysis)
On Thursday, the House Judiciary Committee plans to mark up and vote on the Stop Online Piracy Act (SOPA), an important piece of legislation that's been fostering fervent debate in recent weeks.
In advance of the markup, Rep. Lamar Smith, chairman of the committee, has made some tweaks in a so-called manager's amendment, aimed at building support by attempting to clarify the bill's main targets as foreign "rogue" websites, narrowing definitions of bad actors, limiting the private right of action that allow copyright and trademark owners to sue, and addressing concerns that anti-piracy measures could eventually denigrate the security and integrity of the Internet.
The changes are in direct reaction to criticism that has transcended political parties, and the modifications were welcomed by the entertainment industry lobby and the U.S. Chamber of Commerce. But the new version of SOPA still has not gone nearly far enough in narrowing its definitions and curtailing its service provider obligations to appease leading technology companies and other groups rallying against the bill.
One of the main criticisms against SOPA is that it's de facto "censorship," requiring ISPs at times to prevent access to infringing sites by making efforts under order to block web browser requests for flagged domain names. The prospect of domain name system (DNS) blocking and filtering has alarmed some who believe it would be intrusive and undercut the secure structure of the Internet.
Among the many changes in Rep. Smith's managers amendment is a "savings clause," which not only explicitly clarifies that SOPA is not meant to be a prior restraint on free speech, but also would remove a duty to monitor activity on a network and restrict courts from making any order that would "impair the security or integrity" of DNS.
On the other hand, service providers will still face obligations to cut off access to pirate sites. Under the new version, it will be measures determined to be "least burdensome, technically feasible, and reasonable means designed to prevent access by its subscribers located within the United States to the foreign infringing site that is subject to the order."
The italics illustrate new language in the modified bill, clearly designed to convince the tech community that a weight is being lifted from their shoulders. The provision also removes a five day deadline from implementing such action upon a court order, but since the language is deemed vague by many, and application has yet to be seen, many critics believe that is still adds up to anxiety and liability for leading U.S.-based tech companies.
Public Knowledge, one of the groups leading the charge against the bill, doesn't believe there has been much progress in the new SOPA. "The amendment continues to encourage DNS blocking and filtering, which should be concerning for internet security experts and human rights activists alike," said Sherwin Siy, deputy legal director of Public Knowledge.
Google Executive Chairman Eric Schmidt also echoed that sentiment. The bill would "criminalize linking and the fundamental structure of the Internet itself," he said yesterday.
That reaction brought strong rebuke from the MPAA, which has been attempting to steer legislation through the home stretch.
"Schmidt’s comment that the legislation ‘criminalizes the intermediaries’ is a new weapon in their arsenal of hyperbole," said Michael O'Leary, senior executive vp for global policy at the MPAA. "There is broad recognition that all companies in the Internet ecosystem have a serious responsibility to target criminal activity. This type of rhetoric only serves as a distraction and I hope it is not a delaying tactic."
Insiders believe that the bill will inevitably pass the House Judiciary Committee before gathering some resistance among the broader Congressional caucus. In recent weeks, opposition to the bill has unified groups as diverse as the Tea Party and Occupy Wall Street, albeit it for different reasons. Some think it is government intrusion. Others see it as an inevitable impingement on free speech. Leading tech acolytes such as Twitter general counsel Alex Macgillivray and Wikipedia co-founder Jimmy Wales are delivering a blow-by-blow account of the mounting concerns or proposing protests to continue to raise awareness.
Other critics see the inevitability of new anti-piracy legislation and have been rallying behind an alternative bill entitled the Online Protection and Enforcement of Digital Trade Act (OPEN), sponsored by SOPA critics Sen. Ron Wyden and Republican Rep. Darrell Issa.
That alternative bill would take a more modest copyright infringement approach by allowing rights-holders to file petitions against "rogue" foreign sites with the International Trade Commission, which would then be allowed to attack the financial backbone of these sites by drying up funds from credit card processing companies. Supporters of SOPA doubt the remedy goes far enough to properly address piracy by enhancing obligations from service providers.
The debate is likely to only get louder in the next week or so as Congress makes its moves before winter break. In advance, both sides are attempting to position themselves as being the sensible ones in the room by adopting the other side's language. The critics of SOPA say they want to address piracy -- but in a measured way. The supporters of SOPA love free speech -- but need to protect the vibrancy of art.
At a speech this morning at the Center of American Progress, MPAA chairman Chris Dodd continued his call for Congress to act now. "I want to make it clear right at the outset that our fight against content theft is not a fight against technology," he said. "Attacking international content theft is not about restricting speech. Quite the opposite. Just as the Constitution defends an artist's right to create, copyright protections defend the artist's ability to do so.”