House Judiciary Committee Has More Work to do With SOPA Markup

After a 12-hour Thursday hearing, Smith says it will be a "long hard day" on Friday

By John Eggerton -- Broadcasting & Cable, 12/15/2011 10:19:08 PM

After a 12-hour hearing that saw a parliamentary inquiry prompted by a tweet and some heated exchanges, the House Judiciary Committee still had more work to do in marking up the controversial Stop Online Piracy Act (SOPA).

"It is going to be a long, hard day [Friday]" said Committee Chairman Lamar Smith (R-Tex.), who said the markup would wrap up Friday.

The bill is expected to be voted out of committee.

One amendment -- of many -- defeated late in the day was one that would have taken away the immunity of ISPs for web site takedowns so long as those were good faith efforts based on credible evidence of infringing content. Put off for Friday was an amendment that would require a court order of some sort, TRO or injunction, before such takedowns could be done with impunity.

Currently, USPs, ad networks, search engines and others cannot be sued for inadvertently taking down non-infringing sites so long as they did so based on credible evidence that the site had been infringing.

Bill critics fired round after round at the bill, but pushed mostly for delay so that there could be more hearings, and more negotiation, and more "nerds" brought in to give legislators a clearer sense of how the bill could affect cybersecurity, for one thing, and the open Internet for another.

Zoe Lofgren (D-Calif.) whose district includes Google's headquarters and other Silicon Valley powerhouses, led the attacks on the bill, saying it would allow for "dramatic, draconian action" by ISps and others to suppress competitors and Free speech without any court test or liabilty. She said such takedowns could inflict the death penalty" on a web site or small business without due process.

She said that immunity would give an ISP -- she used Comcast as an example -- the opportunity to take action to "disappear" competitors if there was any credible representation they could rely on for doing so. That point was made repeatedly by Rep. Jared Polis (D-Colo.), who proposed the court order amendment. He said it would only take a halfway decent corporate lawyer representing a rightsholder to draw up something that looked credible. If an ISP then took down the site, it would have immunity from lawsuits if the rightsholder were wrong, or up to mischief, and the site was not infringing, but no immunity if it chose not to take a site down and it proved to be infringing. He said in that case, any ISP lawyer would advise them to take it down. One bill supporter pointed out that if there were a court order, an ISP would not need immunity since it was complying with a court.

Rep. Bob Goodlatte (R-Va.) said he was entering into the record the letters in support of SOPA from the National Cable & Telecommunications Association and Comcast.  He said that cable ops would not be supporting the bill if it jeopardized their business. Goodlatte and Rep. Howard Berman (R-Calif.) were among the bill's staunchest defenders.

Berman pointed out that, under the bil, if site was legitimate and sued an ISP. if they could not establish that there was credible evidence, they don't have immunity, but that wihtout immunity, as there is in the Digital Millennium Copyright Act, the takedown process does not work.

In its letter, NCTA President Michael Powell said cable ops were particularly pleased with changes made to the bill in a new version introduced by Smith earlier this week that "helped to clarify and limit the scope of service provider obligations, while preserving a multi-pronged approach to fighting piracy with measured requirements that are shared among multiple interested parties." He said that, based on those, NCTA strongly supported the bill.

Smith began the hearing with the warning that his audience would likely need a lunch and flashlight, suggesting the hearing would be an all-day, and next-day, affair. There were early indications that he knew whereof he spokes. Lofgren objected to waiving the reading of the bill, requiring the clerk to read all 71 pages, which took most of an hour. Usually the clerk can't get past the title before the reading is waived. But Lofgren said that since the new version was only released Monday, the public should have a chance to hear what was in the bill.

Other delays that pushed the hearing to 9:30 p.m. were a break for floor votes and a dust-up over a tweet.

Rep. Sheila Jackson-Lee (D-Calif.) had the floor when she stopped and said she had just been notified that Committee member Rep. Steve King (R-Iowa), not then in the room, had tweeted the following: "We are debating the Stop Online Piracy Act and Shiela Jackson has so bored me that I'm killing time by surfing the Internet." (a check of his twitter confirmed it). She called for an apology, saying that was offensive, which triggered a counter call that she should take the "offensive" part back since she was impugning the integrity of a member. She declined, had a discussion with the parliamentarian, and eventually agreed to take back "offensive" and change it to "impolitic and unkind," but said he would be talking to King later about his tweet.

Netcoalition.com was not pleased with the day's proceedings, which included defeating those amendments, mostly from bill critics, and the pledge to finish the markup and proceed with a bill most of those critics want to be at least delayed.

"Despite nearly twelve hours of debate, the committee missed some real opportunities to improve this legislation or to address the serious security, due process and censorship concerns raised by hundreds of parties," said the coalition, which includes Google, Yahoo!, eBay, AOL, and Twitter. "SOPA remains deeply flawed and it is unfortunate that its sponsors remain intent on pushing this bill through committee, and to the floor, without meaningfully acknowledging any of its very significant faults. The Internet deserves better and so do the American people."

The bill is backed by studios, networks, publishers and other content rightsholders, not surprising since digital delivery is the new norm in content distribution.