Senate Judiciary Committee Marks Up S. 968 (PROTECT IP Act)

by Christina Frangiosa


Yesterday, the Senate Judiciary Committee held a business meeting which was scheduled for purposes of discussing certain nominations and markups to at least two bills: 1) S.968, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (“PROTECT IP Act”) (sponsored by Leahy, Hatch, Grassley, Kohl, Feinstein, Schumer, Graham, Whitehouse, Klobuchar, Franken, Coons, Blumenthal); and 2) S.978, A bill to amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes (Klobuchar, Cornyn, Coons). A discussion of S. 978 was held over until the next meeting.

The meeting was not open to the public and was not simulcast, but an audio file of the meeting is now available on the Committee’s site, along with the agenda. Senators Leahy and Franken have also published their prepared remarks on the Committee’s site.  (UPDATE:  A webcast of the Executive Business Meeting is now available on the site.)

During the meeting, Senators Leahy, Hatch and Grassley offered an amendment in the nature of a substitute, and Senators Leahy and Grassley offered an additional amendment. Both of these were made available on the Senate Judiciary Committee’s main site, although I imagine they will be moved at some point in the near future (once there is more current news to publish on the main site).

Both amendments passed the Senate Judiciary Committee on a 10-0 Voice Vote. Following the announcement that the Bill had passed the Senate Judiciary Committee, however, Senator Wyden announced a hold on the Bill, commenting that while “I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, . . . I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective.” An interesting article in Wired.com identifies the “hold” process as “rarely used” in the Senate, but effectively blocking the Bill from “landing” on the Senate floor.

Statements of several organizations on both sides of the fence on this issue can be found as follows (below are excerpts of the various statements, please click the links to their full statements to get complete context):

IN FAVOR

  • Microsoft, praising the Bill (5/26/11), issued before the amendments were reported, supports the Bill, but cautions: “Safeguards should be included to ensure that rogue sites are identified clearly and appropriately, and that the responsibilities of companies required to take action to ensure compliance are well defined and their liability appropriately limited. In addition, steps should be taken to ensure that the private right of action is not subject to abuse, and that the new actions and resulting orders do not stifle free speech or the free flow of information.” Brad Smith, General Counsel and Senior Vice President, Legal & Corporate Affairs, Microsoft also issued a statement in support of the Bill.
  • U.S. Chamber of Commerce’s Global Intellectual Property Center, praising the Bill (5/26/11), specifically stating: “Rogue sites and their operators contribute nothing to the U.S. economy. They do not innovate, they do not pay taxes, they do not follow safety standards, and they do not follow the law. Today’s vote serves as a wakeup call to those who illicitly profit at the expense of American businesses and consumers—the U.S. will not tolerate your careless, reckless, malicious behavior.”
  • Copyright Alliance, praising the Bill (5/26/11), specifically stating: “”The websites targeted by this legislation are draining income from American businesses and misleading consumers with their unregulated, unlicensed and unsafe practices. This bill provides much-needed tools for law enforcement to do its job and we urge the full Senate to consider it in the very near future.”
  • National Cable & Telecommunications Association, supporting the Bill (5/26/11), stating “By cracking down on rogue websites that have for too long encouraged the theft of valuable content and intellectual property, the PROTECT IP Act of 2011 sends a strong message that this illicit practice will no longer be tolerated.”
  • A group of entertainment professionals jointly issued a statement in support of the Bill, entitled, “Joint Statement from AFM, AFTRA, DGA, IATSE, IBT and SAG Commending Senate Judiciary Committee Passage of the PROTECT IP Act.” Representing “more than 400,000 entertainment industry workers including craftspeople, actors, technicians, directors, musicians, recording artists and others whose creativity is at the heart of the American entertainment industry,” the statement opines,
    • “[W]e believe the PROTECT IP Act is critical to efforts to aggressively combat the proliferation of foreign ‘rogue websites’ that steal US produced content and profit from it by illegally selling it to the American public. Let us be very clear: online theft is stealing. It results in thousands of lost jobs and millions of dollars in lost wages for our members. We reject the claims that shutting down illegal sites may somehow impact legitimate commercial websites. This bill clearly goes after illegal sites; legitimate and law abiding websites are not the target and we would hope that those who advocate against either of these bills are not condoning illegal activity on the Internet any more than they would condone illegal activity in their bank or grocery store. Today’s passage of the PROTECT IP Act is a significant step toward ending the ‘looting’ of the creative and artistic entertainment works that constitute our members’ hard work, and are an invaluable part of our collective cultural heritage.” (Emphasis added.)
    • The groups signing on to this Joint Statement are the American Federation of Musicians (AFM), American Federation of Television and Radio Artists (AFTRA), Directors Guild of America (DGA), International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada (IATSE), International Brotherhood of Teamsters (IBT) and Screen Actors Guild (SAG).
  • Another group in the entertainment industry (IFTA, NATO and MPAA) jointly supported the Bill, specifically stating, “By helping shut down rogue websites that profit from stolen films, television shows, and other counterfeit goods, this legislation will protect wages and benefits for the millions of middle class workers who bring America’s creativity to life.” (Specific quote was attributed to Michael O’Leary, MPAA).
    • According to the press release, this group includes the Independent Film & Television Alliance® (IFTA), the National Association of Theatre Owners (NATO), and the Motion Picture Association of America, Inc. (MPAA)
  • The American Apparel and Footwear Association, supporting the Bill (5/26/11), states “While the current PROTECT IP Act is a significant improvement over previous attempts at legislation to shut down rogue Web sites that sell counterfeit goods, the U.S. apparel and footwear industry believes this bill can be made stronger. We are pleased that language has been included to allow law enforcement the ability to share information with rightsholders.”

OPPOSED

  • Center for Democracy and Policy (CDT), opposing the Bill (5/26/11), but noting that improvements were made during the markup session on May 26: “CDT has expressed its concern with this approach, and particularly with the portions of the bill that try to use the domain name system (DNS) to control ‘rogue websites,’ in previous blog posts and congressional testimony. The Committee today made a few modest but generally positive changes, such as improving transparency via annual oversight reports and tightening some language designed to prevent the bill from undermining the crucial copyright liability “safe harbor” under section 512 of the DMCA. But CDT’s core concerns remain.” (Internal hyperlinks omitted)
    • CDT published a letter sent by public interests groups on 5/25/11 to the Judiciary Committee, expressing concern with the Bill. The signatories were the American Association of Law Libraries, Association of College and Research Libraries, American Library Association, Association of Research Libraries, Center for Democracy and Technology, Demand Progress, EDUCAUSE, Electronic Frontier Foundation, Human Rights Watch, Rebecca MacKinnon, Bernard Schwartz Senior Fellow, New America Foundation, Public Knowledge, Reporters sans frontières / Reporters Without Borders and Special Libraries Association.
    • CDT published another letter sent by Internet and payment system companies on 5/25/11 to the Judiciary Committee, objecting to the creation of a private right of action included in the Bill. The signatories were American Express Company, Consumer Electronics Association, Discover, Visa, PayPal, NetCoalition, Yahoo!, eBay and Google.
    • CDT also published a letter sent by various trade associations on 5/25/11 to the Judiciary Committee, expressing concerns about the definition of “dedicated to infringing activities,” application to search engines, creation of a private right of action and DNS blocking. Signatories were Computer and Communications Industry Association (CCIA), Consumer Electronics Association (CEA) and NetCoalition.
  • Public Knowledge, opposing the Bill (5/26/11), specifically stating: “We are disappointed that the Senate Judiciary Committee today approved legislation (S. 968) that will threaten the security and global functioning of the Internet, and opens the door to nuisance lawsuits while doing little if anything to curb the issues of international source of illegal downloads the bill seeks to address.”  Public Knowledge also published a paper entitled, “Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill” (May 2011).
  • Google appears to oppose the Bill (according to an article appearing in The Guardian (UK), but I was unable to find a formal press release to that effect. See “Google boss: anti-piracy laws would be disaster for free speech,” The Guardian, May 18, 2011 (i.e., before the measure passed the Senate Judiciary Committee). Note that they signed on to one of the 5/25/11 letters that CDT posted to its site (referenced above).