Manager’s Amendment to SOPA Makes Big Changes

On December 12, 2011, Representative Lamar Smith, chairman of the House Committee on the Judiciary, introduced a “Manager’s Amendment” to the pending Stop Online Piracy Act (H.R. 3261), in advance of a scheduled hearing and markup session before the Committee on December 15 and 16, 2011. On December 14, he issued a press release challenging the opposition that had garnered significant press attention. In it, he denounced the opposition, claiming that it is either mistaken about the actual contents of the bill or that its complaints are simply outdated because of the changes made in the Manager’s Amendment.

With regard to Google, one of the loudest opponents of both the PROTECT IP Act and SOPA, Chairman Smith stated, “In August, Google paid half a billion dollars to settle a criminal case because of the search engine giant’s active promotion of foreign rogue pharmacies that sold counterfeit and illegal drugs to U.S. patients.  Their opposition to this legislation is self-serving since they profit from doing business with rogue sites that steal and sell America’s intellectual property.”

Webcasts for the hearing and markup sessions may be found in the Committee’s hearing notices, although news reports indicate that the first session ran a “marathon” twelve hours, so be prepared for the long session. Tamlin Bason, “Rep. Lamar Smith Delays SOPA Markup, Will Consider a Hearing on DNS Blocking,” 83 BNA Patent Trademark & Copyright Journal 261 (Dec. 23, 2011) (subscription access required). Draft transcripts are available for both the December 15 (459 pages) and December 16 (58 pages) sessions. An additional markup session originally scheduled for December 21, 2011, was postponed “due to House schedule” (presumably referring to the recess taken on December 20.) A summary of the proposed amendments and vote count can also be found on the Committee’s hearing page.

According to a Summary statement issued by the Committee on the Judiciary, the Manager’s Amendment makes the following changes:

  1. Clarifies that the bill does not require that users of a targeted website be directed or redirected to another site;
  2. Establishes a “kill switch” that would allow an ISP to decline to carry out any court order that it finds would “impair the security or integrity of the system” – thus protecting the security and integrity of the DNS (domain name system);
  3. Applies only to foreign websites;
  4. Adds new savings clauses – a) providing no duty to monitor illegal activity on a provider’s network or service; b) does not impose a technology mandate on any party; and c) leaves all DMCA safe harbors in place for intermediaries;
  5. Removes the pre-suit notification provision to “encourag[e] parties to engage in voluntary, completely market-based solutions;”
  6. Removes language in the private right of action that provided liability in cases of willful blindness or engaging/facilitating in the infringement/counterfeiting;
  7. Limits the definition of intermediaries that could be subject to this bill;
  8. Provides that ISPs cannot be ordered to block a subdomain;
  9. Provides that search engines would be allowed to continue to deliver links to any legitimate subdomains or portions of the site that do not infringe; and
  10. Clarifies that the ISPs may only be required to take measures that they determine are the “least burdensome, technically feasible, and reasonable.”

People in the IP community have asked why the DMCA (Digital Millenium Copyright Act) can’t simply be applied to seek takedowns of infringing/counterfeiting sites such as these. Chairman Smith answered that question in a December 15 public statement about the necessity for legislation such as the Stop Online Piracy Act:

“While the DMCA helps, it only applies in limited circumstances:
  • It provides no effective relief when a rogue web-site is foreign-based and foreign-operated like PirateBay – the 89th most visited site in the U.S.;
  • It doesn’t protect trademark owners and consumers from counterfeit and unsafe products like fake prescription medications available on legitimate-appearing but unlicensed “online pharmacies”;
  • It doesn’t assist copyright owners when foreign rogue sites are devoted to the theft of intellectual property on a massive scale;
  • And, finally, it does nothing to address the use of intermediaries such as payment processors and Internet advertising services that are employed by criminals to fund illegal activities.”  

Id. (bullets added).

Chairman Smith indicated at the close of the December 16 session that he may entertain additional markup sessions, but as Congress is now in recess, these sessions will likely be scheduled after the next session begins on January 17, 2012.

The Judiciary Committee’s “Rogue Websites” page has some interesting links to various articles demonstrating support for SOPA and various summaries and fact sheets about the bill. The page does not purport to be an unbiased recitation of commentary to date about SOPA (for instance, it does not catalog the various positions articulated in opposition to the bill), it provides a useful one-stop-shop for statements in support that may not be available together elsewhere.