Discord Brings SOPA Markup Screeching to Abrupt Halt
House Judiciary Committee Chairman Lamar Smith, R-Texas, postponed the markup of the Stop Online Piracy Act (SOPA) after considering less than half of the proposed amendments to the bill Thursday and Friday. Opponents repeatedly decried the legislation’s lack of technical analysis at the Thursday markup, particularly with respect to its proposed DNS blocking provision (CED Dec 16 p1). Smith said Friday he would consider, but did not agree to, holding a subsequent hearing with security experts to determine what effects the bill could have on the security of the Internet.
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The bill is by no means a done deal, as the committee still has nearly 40 amendments to consider when the markup resumes. Nevertheless Rep. Darrell Issa, R-Calif., a sponsor of the rival OPEN Act, appeared despondent over his ability to block the bill: “It’s very clear we are going to lose eventually. We are going to lose in the worst possible way. We are going to lose without all the facts.”
Smith said late Friday the committee would resume its markup of SOPA at 9 a.m. Wednesday. The decision to hold a markup when many members are likely to be absent “demonstrates a clear desire to continue dodging the questions raised by experts, members, and the public,” said Sherwin Siy, deputy legal director of Public Knowledge. “This unwillingness to take expert evidence, listen to constituents, or conduct due diligence in investigating the extraordinary harms risked by SOPA shows a process divorced from representation, responsibility, and reality.”
Issa said the markup was unfair and accused Smith of crafting an “anti-Google bill,” he told us during a markup recess. “When he held a single hearing, he brought forth one company [Google] so they could get beat up, he tipped his hand that the process was not going to be fair,” he said. “Whatever his problem with Google, this isn’t about Google. This is about thousands of other companies. If this is going to be an anti-Google bill, be honest about it.”
When the two-day markup adjourned Friday, five amendments had been agreed to and 23 were either withdrawn or failed to pass. During Thursday’s nearly 12-hour markup, committee members considered 25 amendments to the legislation and largely rejected efforts to water down the bill’s provisions for ISP immunity and DNS blocking, among others. The committee blocked four Issa amendments and three from Rep. Zoe Lofgren, D-Calif., another OPEN Act cosponsor, which aimed to remove the DNS blocking provision and further narrow the bill’s language. On Friday the committee only considered three amendments; one was withdrawn and an amendment by House IP Subcommittee Chairman Bob Goodlatte, R-Va., to clarify ISP safe-harbor provisions passed easily.
Committee members voted down Friday an amendment to strike the bill’s private right of action. The amendment’s author, House Crime, Terrorism, and Homeland Security Subcommittee Chairman Jim Sensenbrenner, R-Wis., said the remaining provision sets a “very dangerous precedent” that gives rights holders a private right of action “to do what law enforcement should be doing on its own.” Goodlatte opposed the amendment, which he said was “considerably damaging” to the legislation and warned that “making such a core change to the bill could turn this program into a paper tiger.”
The private right of action would create a “flood of litigation,” said Rep. Jason Chaffetz, R-Utah and OPEN Act cosponsor, which would “put some of our innovators, our job creators … on the defensive, who will have to pay untold millions of dollars trying to protect themselves.” But without the provision the Justice Department would “become swamped,” said Rep. Jerry Nadler, D-N.Y. “If you don’t allow a private right of action there will be very little enforcement.”
Chaffetz implored Smith to hold both a classified hearing with officials from the National Security Agency and Department of Defense and a separate public hearing with technical experts. Though Smith said he would consider holding such a hearing, he later told us: “I wouldn’t expect the hearing to have an effect on the bill.”
The ACLU hailed Smith’s offer to consider a hearing on the technical aspects of the bill as a positive development, but said there are plenty of other questions that remain. “I still wonder if there will be any movement toward narrowing the amount of content -- including lawful, non-infringing content -- that will become less accessible after enactment of the bill,” said Michael Macleod-Ball, chief of staff for the ACLU’s Washington office. “Notice needs to be extended to the non-infringing content producers whose work will be impacted. And there shouldn’t be any shortcuts for [notice] -- not when takedown of First Amendment protected material is involved.”
The MPAA commended Smith Friday for working to fashion “strong, bi-partisan legislation that will protect millions of American jobs and creativity.” The MPAA also applauded the committee’s defeat of “dozens of amendments that would have weakened the bill and would have made it more difficult to stop online content theft and counterfeiting.” MPAA Senior Executive Vice President for Global Policy and External Affairs Michael O'Leary said he was confident the bill will soon be approved “by a strong bi-partisan margin” and then taken up by the full House and approved there.