Dear Lamar Smith & House Judiciary: Have You Learned Nothing From SOPA?

from the ridiculous dept

I've been hearing for a few months now that the staffers on the House Judiciary Committee, who were the main supporters of SOPA, haven't been able to let go of what happened (or even understand it). That's been pretty obvious from the few public statements they've made since SOPA failed. And now it's been made doubly clear. On Monday, we wrote about how Lamar Smith and the House Judiciary Committee that he chairs were looking to rush through a piece of SOPA embedded in another bill. It wasn't one of the most controversial bits, but it was an issue we had raised with SOPA, even if it took a back seat to some of the bigger problems.

What was stunning was that the SOPA protests were largely about process -- backroom deals, without public input or scrutiny -- and in this case, with this new bill (officially dubbed the Intellectual Property Attache Act) they not only did the same thing, but were trying to rush it through on a fast track significantly more extreme than SOPA. That is, they only shared the draft on Saturday and announced that there would be a markup on the bill (which they never even introduced) on Tuesday morning. That's rare. Normally, you officially introduce the bill, hold various hearings that involve experts, make some adjustments, and then hold a markup hearing to allow for additional amendments. In this case, they jumped right to that last step -- completely skipping over some rather major steps that would allow for public input and scrutiny.

In other words, they did the exact opposite of what the SOPA experience told them they should do.

However, because we and a few other sites pointed out the issues here, some of the original supporters of the bill began expressing doubts. Some others on the HJC offered up amendments -- including one that would say that the IP attaches couldn't just focus on enforcement, but also on limitations and exceptions like fair use (you know, actually focusing on what US law is, rather than what Hollywood wishes it would be). But apparently there is resistance to those amendments. However, because lots of people did speak up and let the HJC and Lamar Smith know that they would not accept them rushing through a piece of SOPA without public discussion, the bill has been (temporarily) delayed.

Of course, still not getting it, the HJC issued a petulant statement, effectively blaming us for this turn of events:

"This week, the House Judiciary Committee released a discussion draft of a bill that streamlines the IP attache program to help safeguard American intellectual property abroad. Unfortunately, some groups and blogs have misreported that this is a follow up to the Stop Online Piracy Act. That is not the case. The bill that the Committee currently is working on is a narrow piece of legislation to ensure better use of Patent and Trademark Office funds. The current draft increases organizational efficiency at the PTO and moves the IP attache program squarely within the PTO to ensure direct accountability of the IP attaches.

"Since releasing that draft, for which there is bipartisan and industry support, we are making some changes based on feedback from outside groups and Members. We plan to circulate a new draft based off those changes to ensure that the development of this bill continues to be an open and transparent process."

The statement is partially misleading and partially false. First of all, the language is quite similar to a portion of SOPA -- so claiming that it's not a "followup" to SOPA is clearly false. This was a part of SOPA, and now it's a part of a new bill -- but ignoring the fact that it was in SOPA is simply wrong. Second, the statement is incredibly misleading, in that they suggest that they were always seeking feedback. That's not true at all. It was on the markup schedule for Tuesday morning -- and that was published on the HJC website for anyone to see (though it's since been taken down). Finally, no one else saw a draft until Saturday and no one in the press got it until Monday morning -- about 24 hours before the markup (despite HJC staffers promising some members that it would release the draft at least a week before any effort to move it forward). Basically, the HJC staffers who put out this statement are creating a misinformation campaign, claiming (incorrectly) that we and a few other blogs who wrote about this were the ones spreading the misinformation.

They can't even own up to their own attempt to rush this bill through. It's shameful.

As Ernesto Falcon at Public Knowledge has written, if you want to "shake the ghost of SOPA," perhaps try to not rush through a bill that you kept secret without allowing the normal process of public comment and feedback.

The latest controversy with the Intellectual Property Attache Act, formerly a provision within the Stop Online Piracy Act (SOPA), is entirely self-inflicted by its lead sponsors.

You do not have to be a political strategist to figure out that trying to pass a piece of SOPA might in fact inflame the wide array of opposition to SOPA. You also can not cry foul when you secretly develop the legislation, hold no legislative hearing on its merits, and attempt (and thankfully fail) to move the legislation through the Committee almost 24 hours after it was leaked to the press. Each of these steps flies in the face of the request made by opponents to SOPA for more openness, inclusion, and transparency for intellectual property policy decisions. It is as if the some believe that the business of copyright legislating can proceed as usual and that the Internet Black Out never occurred.

If the House Judiciary Committee wants to shake off the ghost of SOPA and avoid having legislation blow up in their collective faces, they need to rethink how they move intellectual property bills. The Committee must proactively work at justifying to the public why a bill is necessary and win their support for its passage before voting it out. It should stop trying to move bills first and put the burden on the public to stop them from blindly moving forward.

At this point, we've heard that some Judiciary Committee staffers view sites like Techdirt as "the enemy." That's completely wrong. We'd just like them to not try to sneak bad bills through -- and to actually do their job and let the public weigh in on things. Is that so difficult to comprehend? This isn't political. We have nothing against the House Judiciary Committee as a whole. We'd just like them to actually acknowledge the public's role in the process. If they did so, perhaps people wouldn't complain and speak out. If they really are being "open" about this, then there wouldn't the this sudden surprise. There wouldn't be this attempt to rush things through... and there wouldn't be a public outcry. So it's in their own best interests to actually admit that the public exists and should be a part of the process, rather than snubbing them.

Filed Under: house judiciary committee, intellectual property attache act, lamar smith, sopa, transparency