BSA Pulls Support From SOPA; Is Tide Turning as Markup Approaches?

Access practice tools, as well as industry leading news, customizable alerts, dockets, and primary content, including a comprehensive collection of case law, dockets, and regulations. Leverage...

By Tamlin H. Bason

Nearly a month after commending Rep. Lamar Smith (R-Texas) for the introduction of a bill that he said represented a “good step … to address the problem of online piracy,” Robert Holleyman II, president of the Business Software Alliance, raised concerns that the Stop Online Piracy Act may in fact be too broad as currently drafted.

BSA's apparent flip-flop, which came in a Nov. 21 blog post in which Holleyman said, “Valid and important questions have been raised about the bill,” represents another blow to legislation that has been consistently opposed by many in the internet and technology industries. However, despite the broad criticism, Smith reportedly plans to move the bill to markup on Dec. 15.

H.R. 3261 Was Introduced in October

H.R. 3261 was introduced Oct. 26 by Smith, chairman of the House Judiciary Committee (209 PTD, 10/28/11). It is a counterpart to the Senate's Protect IP Act, S. 968, which was approved by the Senate Judiciary Committee in May (103 PTD, 5/27/11) Both bills seek to give the government tools to combat websites that give access to infringing material and counterfeit goods and to act against unauthorized streaming of content.

H.R. 3261, which is broader in many regards than its Senate counterpart, was championed at its introduction by the content community and criticized by many in the tech industry. BSA was initially in favor of the legislation, and in an Oct. 26 press release Holleyman said, “We look forward to working with Chairman Smith and his colleagues as they push this important legislation forward.”

BSA now says that the bill is overbroad. “It is intended to get at the worst of the worst offenders,” Holleyman wrote. “As it now stands, however, it could sweep in more than just truly egregious actors.”

That the language is vague and overly broad has been a common criticism of the bill since its introduction. This criticism stems in part from the definition of websites that are dedicated to infringement—and thus potentially subject to civil and criminal liability—which under Section 104 (a)(1)(B)(ii)(I) of the bill includes a website that “is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” infringement.

“To fix this problem, definitions of who can be the subject of legal actions and what remedies are imposed must be tightened and narrowed. Due process, free speech, and privacy are rights cannot be compromised,” Holleyman said.

Tech Industry Aggressively Opposing Bill

Many in the technology industry have opposed the bill since its introduction. Prior to a Nov. 16 Judiciary Committee hearing on the legislation, a number Silicon Valley companies released a joint-statement criticizing the bill.

The letter, which was sent to the House and Senate Judiciary Committees by Google Inc., Facebook Inc., Twitter Inc., and Yahoo Inc., among others, said that SOPA would “seriously undermine” the Digital Millennium Copyright Act, a law that criminalizes the circumvention of measures used to control access to copyrighted works.

The letter also ran as a full-page ad the day before the hearing in the New York Times, the Washington Post, the Wall Street Journal, and the Washington Times.

Art Brodsky, communications director for Public Knowledge in Washington, D.C., told BNA Nov. 27 that the opposition is at such a fevered pitch in part because for the first few weeks after the bill was introduced any would-be opposition was drowned out by the content community and those who supported the bill.

“Initially all the members [of Congress] heard from were the companies that said we need to stop piracy, and they also heard from labor unions, also worried about the effect of piracy on jobs,” Brodsky said. “And when you look at the bill from the 80,000 foot-level it may look reasonable. It is not until you descend a little bit that you realize that the bill has a myriad of problems.”

Social Media Front and Center in Opposition

Both H.R. 3261 and S.968 have received substantial media attention, which is rather uncommon for IP legislation. Despite the bipartisan support for the legislation in Congress, much of the coverage has focused on problem areas of the bill. In fact, in recent weeks the New York Times and the Los Angeles Times have both taken editorial positions against SOPA.

This negative attention could in part be due to the leveraging of social media to fight the bills. There has been a concerted effort to use social media platforms—the very platforms that many claim would be susceptible to liability if SOPA passes—in order to harness the power of users to oppose the bill.

For example, many social media companies dubbed Nov. 16 “American Censorship Day.” When users logged on to various websites that day they were inundated with information about SOPA, and they were encouraged to contact Congress to oppose the bill. On that one day, the social media website Tumblr claims that it generated 87,834 calls to lawmakers.

“The volume of contact to Senators and Representatives has been unprecedented in this sphere,” Parker Higgins, an activist with the Electronic Frontier Foundation in San Francisco told BNA Nov. 27. Higgins said that the EFF, which has opposed both SOPA and the Protect IP Act since their introduction, has been taken aback by the outpouring of opposition, particularly from users of social media platforms.

“I think that one of the issues is that everyone involved in these sites loves the way the internet works now,” Higgins said.

But, Higgins said that if either bill passes these social media websites could either be blocked at the DNS level for infringing material that is uploaded by users, or they may simply alter their business practices and choose to filter user uploads, or even require users to pay to use their services.

“You can't know exactly how it will play out, but none of those possibilities sound good to the people who have been innovating these platforms,” Higgins said.

Perhaps in a tacit nod to the importance that social media is playing in the fight against SOPA, Rep. Nancy Pelosi (D-Calif.) on Nov. 17 announced her opposition to the bill via Twitter.

Markup Reportedly Set for Dec. 15

Rep. Bob Goodlatte (R-Va.), who is one of the 27 cosponsors of the bill, admitted during the Nov. 16 hearing that though the bill had a good foundation, “A number of the issues raised about it need to be carefully addressed.”

While it has been widely reported that the House Judiciary Committee will take up the bill on Dec. 15, Smith's staff would not confirm the date when reached by BNA.

Whether the broad opposition to the bill has had any impact on Congress's support for the bill will be revealed when, and if, the bill finally proceeds to committee markup.


Request Intellectual Property on Bloomberg Law