Lamar Smith Proposes New Version Of SOPA, With Just A Few Changes
from the not-much-to-talk-about dept
In preparation for his attempt to rush SOPA through Congress, Rep. Lamar Smith has put forth an updated version of the bill (pdf link and embedded below) as a “manager’s amendment,” which will be used for the markup, to be held on Thursday. The markup process, in theory, allows for amendments and changes beyond what Smith brings here, but don’t expect much. After the marketup, the bill gets voted on by the Judiciary Committee, and assuming it passes (likely) the bill can be voted on at any time on the House floor, once the Speaker decides to bring it to the floor.
First up among the “differences,” is that this version of the bill changes the language around DNS blocking. But it appears to be more of a chance of style, rather than substance. The old part (in Section 102 (c)2(a)(i)) read:
A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name?s Internet Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order.
That language has been marginally tempered such that it now reads:
A service provider shall take such measures as it determines to be the least burdensome, technically feasible, and reasonable means designed to prevent access by its subscribers located within the United States to the foreign infringing site that is subject to the order. Such actions shall be taken as expeditiously as possible.
Making it clear that service providers get to pick the “least burdensome” means is better than what was there before (and not giving a hard five day deadline) is at least a tiny step in the right direction, but still leaves us with the simple fact that this is a censorship bill. While it may not name DNS directly, that’s the clear implication here. You have to figure out some way to block websites. The new version does also provide some “safe harbors,” saying that if service providers determine what is the least burdensome, technically feasible means, and go with that, then that “shall fully satisfy such service provider’s obligation.” But… that seems to only apply if that means prevents domains from resolving. In other words, you can use any means you want… as long as you censor.
That doesn’t actually fix the problems with censorship and DNS blocking. It just lets the Judiciary Committee try to wash its hands of the complaint and say: okay, service providers, you deal with it. That’s not helpful.
Most of the rest of this section seems pretty much the same, though it removes the hard five day deadline, which MasterCard had complained about as being unfeasible. Now it’s all about “expeditiously as possible.” I guess a judge becomes the final arbiter on what expeditious means.
Also left totally in place: the anti-circumvention clauses that will outlaw all sorts of legal encryption and VPN tools.
Moving on to the really awful Section 103, which allows for the private right of action. Here again, the language has been toned down, but just around the edges. Thankfully, they took out the “enables” or “facilitates” part, which really opened up SOPA to massive abuse by private actors, but it’s still a pretty broad definition. They’ve also, just slightly, modified the section concerning violations of section 501 of copyright law, so that the private right of action doesn’t apply to all such cases, but just ones where the infringement is “for purposes of commercial advantage or private financial gain, and with respect to infringement of complete or substantially complete works.” This seems like a hamfisted attempt to keep some fair use collateral damage from being caught up in SOPA’s decapitation blades.
Next up, they’ve removed one of the most ridiculous sentences from the old bill’s 103 a(1)B(ii)I, which had that lovely:
” is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation”
Instead, it’s been replaced with:
the operator of the site operates the site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code, as shown by clear expression or other affirmative steps taken to foster such violation.
That seems marginally better — but again, what is “other affirmative steps taken to foster such violation”? Would providing a forum? The ability to upload? The ability to rate? I could easily see this provision just as abused as the previous one.
And… here comes the big change: rather than having a notice and takedown provision first, the new section (similar to PROTECT IP) now lets copyright holders jump straight to court, filing either against the site itself or its owners (if they can be found). The relief there is limited to just an injunction, rather than money, but still… Basically, it looks like they more or less did away with the ability to just send a notice to advertisers/payment processors and at least require a modicum of judicial review before a site is cut off — though, there’s no guarantee that the judge gets to hear both sides, depending on the situation (especially likely for foreign sites).
Update: And here’s another bigish change that I’d missed in the read through. While Section 103 still refers to “US-directed sites,” the definition of “U.S.-directed sites” has now changed to only include foreign sites. Thus, Section 103 no longer refers to domestic sites, but only to foreign ones. Once again… this brings it more in line with PROTECT IP. But doesn’t fix any of PROTECT IP’s problems.
Other than that, it looks like there are also some changes to the felony streaming provisions, though I haven’t had enough time to dig into them and see what they really mean. All in all, it’s about what we expected. A few marginal changes of the worst of the worst of the original bill, but nothing that fixes its major structural problems. What you get is something a little closer to what PROTECT IP is in the Senate. However, it still is a bill that requires censorship of the American internet for the first time, and which still contains broad definitions that will be abused by rightsholders. This isn’t a fix. This is getting rid of the parts that were put in to be sacrificed on purpose, and still having a really bad bill.