Much has been made in recent days about announced amendments to SOPA in response to the effective advocacy efforts of technology and internet companies over the winter holiday period. A review of recent press and advocacy announcements sheds a little light on what is likely out, and still in, the legislation as it stands.The most recent SOPA text is the Managers Amendment, introduced December 12, 2011 (see original bill, introduced October 26, 2011). In the Senate, the official text is still the PROTECT IP Act as reported to the Senate on May 26.
The December SOPA manager’s amendment included some significant changes, most notable eliminating the ability to cut off a site after a mere notice of alleged infringement. But the bill was widely criticized (e.g. from PK and EFF) for keeping its most onerous provisions.
A series of recent public releases by Rep. Lamar Smith and Sen. Pat Leahy suggest the bills may be further amended to take out DNS blocking blacklists from the law. This follows the statement opposing the bills from the White House and six key senators. The momentum on the bill appears to be shifting, with several new senators voicing opposition, including several original bill sponsors. In the house, Rep. Issa explained that Majority Leader Cantor promised to not bring the bill to the House floor before a new consensus is reached.
Public interest groups and technology companies working on the bill have highlighted key problems still remaining, even after DNS blocking is removed. They include:
- The bills still appear to include search blocking, which has been widely criticized as a new and expansive form of government censorship of the internet. It is noteworthy that the DMCA already covers search engines, meaning there is an existing means to remove links to copyright infringing material on foreign sites.
- The bill still has a private right of action which may embolden content providers to sue ad networks and payment processors through the kind of aggressive and far reaching test litigation that has made the RIAA a bad word to so many. It has been noted that the private right of action may allow content providers to bypass DMCA procedures and safe harbors.
- The bill still contains murky definitions that threaten U.S. sites and sites that are not dedicated to copyright infringement. For example, ccTLDs of domestic sites are not excluded from the definition of “foreign site,” a “site dedicated to infringement” can be so labeled if it “facilitates or enables” infringement, rather itself violating any law, even if it is in compliance with DMCA safe harbors.
- Finally, there continues to be a strong incentive for private censorship in the bill. By providing complete immunity for voluntary acts of censorship, the bill may create pressure for search engines, website hosts and others to blacklist content without any due process of law. And, as reported by Sherwyn Siy at Public Knowledge, the language of the bill is so broad as to appear to extend immunity event for censorship performed for anti-competitive reasons (e.g. a cable company’s refusal to allow access to legal competing suppliers of video content).