Washington

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 12/15/2011 10:19:08 PM Eastern

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.

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