Legislative Update: SOPA and PIPA

Users of the Internet may have noticed something happening last month, as Wikipedia went voluntarily blank and other popular websites used "censored" logos to protest Congressional consideration of two bills.

The Stop Online Piracy Act (SOPA, HR 3261) and the Protect IP Act (PIPA, S 968) were recently proposed in the House and Senate, respectively, regarding the online piracy of copyrighted works. The bills address measures to be taken to stop unauthorized sharing and distribution of books, movies, and music.

PIPA was introduced in May 2011, altering some of the more controversial terms of 2010's COICA (Combating Online Infringmenets and Counterfeits Act, S 3804). Most significantly, it clarified the definition of a "rogue" (infringing) website: "'Internet site dedicated to infringing activities' means an Internet site that has no significant use other than engaging in, enabling, or facilitating" unauthorized reproduction of copyrighted works, and "is designed, operated, or marketed ... primarily as a means for engaging in, enabling, or facilitating" unauthorized use. Further, PIPA addressed only rogue websites operated and registered outside of the U.S.

PIPA proposed allowing a court order to remove the support of third parties from the rogue site, cutting it off from online domain name servers, search engines, financial transactions, and advertisers, removing its key sources of traffic and revenue. PIPA passed the Senate Judiciary Committee and gained 40 co-sponsors by December, but was put on hold once it reached the Senate floor, which prevented a vote during the 2011 session.

SOPA, the House bill, similarly sought to remove the third-party support from foreign infringing sites. In response to tech industry concerns, SOPA also included a provision that holds copyright holders liable for damages if they knowingly misrepresent the infringing activities of a website.

SOPA was introduced in October with 12 co-sponsors. The House Judiciary Committee held two hearings on SOPA in November and December, but further markup and voting were postponed indefinitely following January's protests.

In January, increasing debate and widespread protests effectively halted the process of SOPA and PIPA. Protestors argued that SOPA provisions for DNS blocking of infringing sites could "break the internet" by altering its fundamental open, uniform structure; that, if abused, the legislation could threaten free speech; and that if the rogue sites definition was applied too broadly, it could hinder the development of evolving online business models.

Following the widespread protests of the tech sector on SOPA and PIPA, it is unlikely that either will move forward. It is likely that copyright holders will continue to push for legislation of some kind, during this session or the next. One possibility is the "Online Protection and Enforcement of Digital Trade Act," or OPEN (S 2029, HR 3782), proposed in December and gaining popularity as an alternative to the controversies of SOPA and PIPA. OPEN would cut off payments to foreign rogue sites without shutting off traffic completely, and would make infringements a trade breach prosecuted before the International Trade Commission rather than a criminal act prosecuted by the Justice Department.

In December, with Board approval, Peter Givler sent a letter to Senators Reid, Schumer, and Gillebrand in support of PIPA, but not SOPA. We encourage all presses to keep abreast of these issues, as they could each have a significant effect on the publishing world.

Below is a sample of recent blog and news posts on the history and debate behind SOPA/PIPA:

"What Wikipedia Won't Tell You"
by Cary Sherman, The New York Times (2/7/2012)

"Steal This Column"
by Bill Keller, The New York Times (2/5/2012)

"Perpetual War: Pirates and Creators"
by Eduardo Porter, The New York Times (2/5/2012)

"Congress, the White House, and the Myth of Free Security"
by Rick Anderson, The Scholarly Kitchen (1/20/2012)

"The Morning After: Perspectives on the SOPA Debate"
by Sandra Aistars, The Copyright Alliance (1/19/2012)

"SOPA, PIPA, and the AAUP"
by Peter Givler, The Digital Digest (1/18/2012)

"Pirate Attitudes: SOPA, PIPA, and the Struggle to Control Digital Properties"
by David Smith, The Scholarly Kitchen (1/18/2012)