In a repeat of 2010, when he killed the "Combating Online Infringements and Counterfeits Act" (COICA), Sen. Ron Wyden (D-Ore.) has singlehandedly essentially killed the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011," or "PROTECT IP" bill, after it passed out of a Senate committee amidst a flurry of industry letters both for and against it.
Committee Passes Bill
The bill, sponsored by Committee Chairman Patrick Leahy (D-Vt.), former Chairman Orrin Hatch (R-Utah) and Committee Ranking Member Chuck Grassley (R-Iowa), and cosponsored by nine other members, passed out of the Senate Judiciary Committee on a voice vote.
The same day, Wyden announced his intention to hold the bill. Typically, a bill is passed from the committee to the full Senate via a "unanimous consent request," which means everyone agrees to let this happen. However, any Senator can object to the unanimous consent request, putting a halt to the whole process.
What's the Problem?
The target of the bill is purported pirate sites that contain copyrighted content such as music, movies and television programs. Like COICA before it, PROTECT IP would have let the government seize the domain names of sites considered to be pirate sites. However, PROTECT IP went further, by also
- allowing corporations, as well as the government, to seek such injunctions
- by limiting the ability of search engines, and even social media sites such as Facebook and Twitter, to link to sites considered to be infringing
- by encouraging third-party providers to shut down sites thought to be infringing, without any remedy for such sites, by providing liability protection for such actions
The legislation also saw a flurry of competing letters from different parts of the industry, as well as Congress, supporting and opposing the legislation.
A group of approximately 170 organizations, ranging from coalitions to doctors to music publishers, sent a letter supporting the legislation, reading, in part:
The time for action against those who use websites to make illegal profits by stealing the intellectual property (IP) of America’s innovative and creative industries is now. These rogue sites are part of a network of counterfeiting and piracy that a study has found to cost 2.5 million jobs in the G20 economies."
On the same day, however, Senators received another letter, this one from American Express, the Consumer Electronics Association, Discover, Visa, PayPal, NetCoalition, Yahoo!, eBay and Google, asking them not to support it, noting:
We believe that the currently proposed private litigation-based process will, however unintentionally, become a one-sided litigation machine with rights owners massproducing virtually identical cases against foreign domain names for the purpose of obtaining orders to serve on U.S. payment and advertising companies. Not only do we believe that this will be a significant driver of new litigation in federal courts, and will result in an endless stream of court orders imposing duties on U.S.-based companies, but we also believe that this litigation-based regime will significantly reduce the incentive that rights owners have to participate in a cooperative manner in the processes created by payment and advertising companies to address illegal activities by third parties."
In fact, the letter went on to say, the legislation could even help support pornography vendors — never popular with Senators — by giving them an additional weapon with which to game the copyright system.
Wyden's letter announcing his intention to hold the legislation read, in part:
I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective. At the expense of legitimate commerce, PIPA’s prescription takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet."
So Now What?
At this point, for the bill to reach the floor, Senate Majority Leader Harry Reid (D-Nev.) would have to call for cloture, which requires a supermajority of 60 votes, according to legislative newsletter The Hill. It isn't clear whether Leahy could get those votes — despite having such a large number of bipartisan heavy hitters as cosponsors on his bill — and it also isn't clear whether it matters enough to Reid to go through the procedure. (Interestingly, both Leahy and Wyden are Democrats, so that isn't a factor in the Democrat-controlled Senate.) COICA, for example, didn't progress after Wyden placed a similar hold on it last year.
The vendors opposing the bill expressed their support for copyright holders and that they were willing to work to draft a better bill — but keep in mind that PROTECT IP was supposed to be the "better bill" after COICA was killed last year.
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