SOPA/PIPA: Down But Not Out (Yet)

The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) have both taken some pretty serious body blows over the last few days, but it would be premature to write them off just yet.

Both pieces of legislation are backed by some pretty powerful groups with friends in Washington. The sponsors of the bills have made it clear that they are intent on passing some sort of legislation to deal with what they claim is the unfettered theft of U.S. IP and copyright by rogue foreign sites. The developments of the last few days are likely to slow the momentum of the bills somewhat. But make no mistake; supporters of the two bills are as intent on getting them passed, as those opposed to it are at stopping them.

Both SOPA and PIPA are aimed at giving copyright and IP owners more tools for going after foreign sites that they claim are dedicated to the theft and sale of U.S. goods, music, video and other material. SOPA is being considered by the U.S. House of Representatives while PIPA is being considered by the U.S. Senate.

The bills as originally proposed, contained private action provisions that would have let copyright owners go to the MasterCards's and PayPal's of the world and get them to shut off services to sites deemed as infringing on protected content. The bills would have required ISPs and search engine companies to use DNS blocking, DNS filtering and other methods to block access to foreign infringing sites. In theory at least, the bills would have allowed content owners (RIAA/MPAA) to take down an entire website, even if just one page on it carried infringing content.

At one point, both pieces of legislation seemed all but certain to sail through the House and the Senate respectively. But a stubborn and growing chorus of protests by a wide cross-section of Internet stakeholders has forced a rethink. On Friday, six Senators who had originally supported PIPA voiced concern over the bill and called for a more thorough examination of its provisions. The ISP-blocking provision in PIPA is likely going to be withdrawn from the bill.

The same provision in SOPA has already been taken out and content owners now require a court order before they can ask payment providers and online advertising networks to turn off services to rogue foreign sites. Importantly, the White House has also signaled its concerns over the bills and said it would not sign off on anything that infringes on freedom of speech or increases cyber risk.

But both bills are still alive and scheduled for hearings later this month. And while SOPA and PIPA have been watered down, they still contain several controversial provisions. As the Electronic Frontier Foundation (EFF) points out, SOPA for instance, contains a provision that would allow the government to target sites that are seen as providing advice or help on how to circumvent the law. Such an anti-circumvention provision would amount to unconstitutional prior restraint and would apply to U.S. sites as well.

Similarly, both SOPA and PIPA as presently worded would put tremendous pressure on ISPs and other Internet intermediaries to "voluntarily" block access to foreign infringing rights without any oversight, the EFF warns. Even after the amendments, PIPA and SOPA also still allow content owners to get unopposed court orders forcing payment processors and advertisers to stop providing services to sites that are deemed as infringing copyrights, the EFF notes.

Developments over the past few days have shown that the sponsors of both bills are at least willing to listen to some of the concerns that have been expressed. The big question is whether they will be willing to go the extra step, scrap the bills altogether and start over again.

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