from the sit-back-and-relax,-this-is-going-to-take-a-while dept
The "markup" process for SOPA is going to begin shortly (at 10am ET/7am PT), and it's going to be quite a circus. This is when various amendments can be proposed and debated. You can
watch it stream live, if they can keep the stream up (they had trouble during the SOPA hearings). On top of that, I'm planning to live tweet as much as I can
via my Twitter account -- assuming Twitter doesn't tell me I've "hit the limit of tweets for the day" (as it did during the hearings as well). I also have a few meetings here and there, so I'll have to disappear from time to time depending on how long the markup goes. But I still intend to cover as much as I can.
Normally, this process doesn't take a huge amount of time... but this time around there are a huge number of amendments, and reports are that it may take two days to get through everything. I've heard anywhere from 55 to 60 amendments are being proposed, each one of which needs to be discussed and voted on. We got our hands on an "amendments roster" (embedded below) that shows 55 amendments. It's possible that more have been added. However, there are plenty of interesting amendments already here -- and it suggests, at the very least, that some unexpected members of the Judiciary Committee retain serious concerns about SOPA, even after Lamar Smith's watered down version was released.
Here are just a few of the interesting amendments:
- Zoe Lofgren has an amendment that says a DNS operator should have no obligation to block a website if doing so would impair the security or integrity of the domain name system or the operator's system or network. I'm sure opponents will say this makes the blocking toothless, but what they're really saying is they don't care if censoring websites they don't like harms the security of the internet.
- Darrell Issa tries to completely dump the DNS blocking section, as well as the requirements for search engines to block links. This would be a huge step forward... which is why Smith will never let it happen.
- Lofgren wants to make sure the anti-circumvention rule isn't able to be used to block tools used to get around foreign censorship. Considering our own State Department is funding such tools... this seems important. But it does lead to a bizarre situation where it could be legal to create circumvention tools for foreigners, but not for your own country. The whole circumvention stuff is ridiculous.
- Lofgren also wants to make sure that those defined as "foreign infringing sites" actually violate copyright law, rather than "facilitate" infringement. Defenders of SOPA insist it's just about enforcement, not about broadening copyright law itself. But when you extend enforcement to things that don't directly break the law...
- Jared Polis wants an amendment saying that the US government won't spend any money "protecting the intellectual property rights of pornography." Interesting.
- Polis also wants to dump the anti-circumvention provisions entirely. Good for him. Anti-circumvention has been a disaster under the DMCA. Expanding it here would just be crazy.
- Jim Sensenbrenner wants to do away with the private right of action entirely. Also a good idea. At least someone recognizes that this is a lawyer's dream tool. The private right of action will be massively abused. It wasn't clear where Sensenbrenner stood on the overall bill, but nice to see that he's clearly concerned with the likely abuse of section 103. He has another amendment that "replaces" the private right of action with the ability serve an order on payment providers and ad networks -- but limits the authority to enforce this to the Attorney General. I'm not sure this is that much better, but it'll be interesting to hear the details.
- Lofgren tries to narrow the definition of what's "dedicated to theft of US property." This needs to be narrowed. While it's narrower than it was in the original, it's still way too broad.
- Jason Chaffetz has an amendment that says if a company files an action based on Section 103 (trying to get ads or payment processors cut off) and the court disagrees... the company who files has to pay all fees of all the parties. Similarly, Ben Quayle, has an amendment that says anyone who knowingly misrepresents that a site is "dedicated to theft of us property," they'll be required to pay attorneys fees and court costs, and another amendment that just says that the losing party pays. Good to see more members worried about how the private right of action can be abused.
- There are a bunch of amendments clarifying that ad networks, payment processors and search engines should only get immunity in very specific cases for voluntarily cutting off sites, rather than the broad immunity currently in the bill.
- Chaffetz and Polis both have amendments concerning the "study" on the impact. Chaffetz, quite rightly, says that key parts of section 102's DNS blocking should not go into effect until after a study is done assessing the impact on internet security. Polis also wants a report on the impact of DNS blocking, as well as the impact on "employment, economic growth and the availability of capital."
- Polis wants to add in DMCA-like safe harbors to the felony streaming provisions, and also make it so first time offenses remain a misdemeanor.
- Hank Johnson includes one of my favorite clauses, and one I think should be on almost every bill: the provisions of the bill expire after five years. Why more bills don't have such provisions, I don't understand.
- Polis takes on the issue of massively expanding the diplomatic corp. with diplomats whose sole job it is to push ever more draconian copyright law on foreign nations, by saying they should be required to "consider fair use, consumers and licensees as part of their duties." What? Consider consumers? When would Congress ever do that?
- And, of course, Issa seeks to substitute his own OPEN bill. That would definitely be a big step forward towards getting rid of the problems of SOPA, but there's no way that amendment passes.
There are a bunch more, but those were just some of the interesting ones... We'll try to have a wrap up after it's all over. Chances are most of these amendments won't pass, but perhaps a few of them will at least get a reasonable hearing.
Filed Under: amendments, ben quayle, darrell issa, hank johnson, jared polis, jason chaffetz, jim sensenbrenner, lamar smith, sopa, zoe lofgren
