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.

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Comments on “Dear Lamar Smith & House Judiciary: Have You Learned Nothing From SOPA?”

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Digger says:

IPIB - Intellectual Property Isn't Bill

The only bill that should be passed regarding Intellectual Property is one that clearly specifies what we all know. Intellectual Property isn’t property, period.
Ideas cannot be owned. Once shared, those it has been shared with have as much right to use it as the person who thought of it.
The implementation of said idea is the only thing that can be expressed as property. If I say “I want to build a horseless carriage with a motor to make it move” – someone else says “Hey, that’s a great idea”. They go off making a wind-up vehicle, while I proceed with an internal combustion engine, or steam engine approach. Idea shared, implementation different.

It really is as simple as that.

Intellectual property isn’t!!!

Anonymous Coward says:

Re: IPIB - Intellectual Property Isn't Bill

The implementation of said idea is the only thing that can be expressed as property.

I would argue that this, too, leads to problems. To use your example, what if we both went off and made internal combustion engines, but mine had more cylinders than yours, or one of them was a Wankel rotary engine? How similar do the implementations have to be before one of us can cry foul and claim infringement of property rights?

Digger says:

Re: Re: IPIB - Intellectual Property Isn't Bill

You mean like how things are today? How they’ve been for the past 200+ years?

I’m fine with that.

Each person takes the spark of the idea and implements it in their own way, just as it was intended.

Patents and copyrights were never intended to keep ideas away from people, it was only to prevent people from copying the implementation exactly – you know, 100% duplication of a physical item.

Look at the different kinds of barbed wire – each different implementations of the same idea, but each uniquely different.

So many forms of engines, carburetors, injection systems, plugs, ignition systems, etc – so that each is unique to a point.

That is how it’s supposed to be – not saying “oh this interface is mine, I had the idea first, no one else can do it this way” – to return to car analogy – one that is used most commonly – gas, break and clutch pedals – we’d have a thousand different variations if the “interface” was patentable.

The idea isn’t property, the implementation is.

Digger says:

Re: Re: IPIB - Intellectual Property Isn't Bill

Oh and one more thing – property rights – as far as ideas go are as mythical as the IP they pretend to claim ownership of.

If you want to be the sole owner of an idea, then you can never share it.

Once shared, it’s no longer *just* yours. You came up with it initially, but you cannot control dissemination after you’ve shared it.

Anonymous Coward says:

Re: Re: IPIB - Intellectual Property Isn't Bill

You do understand that patents even though they are already awful pale in comparison to copyrights?

Copycrap has that shit about non-literal copying and derivative ownership which patents don’t have at all, you have to show your implementation and if somebody else implements the same thing in a different manner you get no claims.

In that regard you wouldn’t be able to complain about anything, unless you have patented every implementation possible, which is why patents are so expensive, but even that doesn’t stop super patents pools from forming and legal wars from breaking out that affect negatively the public which IP law was designed to serve.

bordy (profile) says:

Re: One small error

This isn’t partisan.


And unfortunately, it seems like too many Congressmen can only conform their official actions to a tired red vs. blue partisan mentality. It’s toxic and I advocate that we actually start voting the toxic players out with independent candidates with no alligience but to their constituents.

/end idealist rant

Anonymous Coward says:

“Unfortunately, some groups and blogs have misreported that this is a follow up to the Stop Online Piracy Act”

OF COURSE it isn’t a follow-up to the SOPA act, Pirate Mike! It’s a copy-and-paste of the SOPA act. We are reusing SOPA under fair use terms. You know, fair use–that abomination you and your kind keep harping on about! Get your facts straight and stop letting Google feed you misinformation!

(uh.. did I do that right? The MPAA executive over there says I don’t get paid unless I do the comment post right. Well, one blog down, 999 to go.)

ken (profile) says:

Government Acting the Part of Drug Addict Enablers

It would be one thing if all this effort was actually helping Hollywood and the Music Industry but in reality all the government is doing is enabling those industries to continue in their self-destructive behavior.

Piracy is not Hollywood’s problem. It is a symptom of their problem which is a fundamental and permanent problem with their business models. The government is acting in the same capacity as those that enable drug addicts. They may mean well but when you have industries that rely on government enforcement rather than meet the demands of consumers then neither they nor the government are serving them nor the public well.

Anonymous Coward says:

best for m of defense is attack, so obviously Techdirt and other blogs are going to get the blame. what is shameful here is the fact that those that tried/are trying to get this and other similar bills through will never have the nerve or the decency to admit to being lying arse holes!

it states that there is bipartisan and industry support for this bill. that makes me suspect that, as before, not only did the entertainment industries, pharma etc see the bill a long time before the leaked copy, they were actively involved in drafting it. what is needed is for any contents of a bill that has been rejected to never ever again be able to be included in another bill of a similar nature, that would achieve the same or similar effect. if not, all that will keep happening is what has happened here. SOPA is basically killed but parts will keep being added to other bills or introduced separately until all those rejected parts come into force anyway!

Cory of PC (profile) says:

Well it’s definitely true that we may not have a thing against the House Judiciary Committee… it’s that we have a thing against the people in the committee. It is those people who come in and join it for their own personal goals, instead of listening to the public, and collecting vast amount of money through different sources (one is the entertainment industry, for example).

Personally, I am one that don’t look at things as bad ideas unless they were intended to be a bad idea. When you get human nature involve, things will go differently as planned and the results could be very different from what the person who created thought it would be. It’s like saying the TSA “could” be a whole lot better at its job (and I’m using “could” loosely), but it all boils down to who is in charge and how things unfold in its run. It also differs from one person’s point-of-view as well, especially when we are dealing with political bodies and the like (and we definitely are going to have various opinions on that alone).

So yes not of all of us hate the HJC… just those currently running it.

Anonymous Coward says:

Re: Lamar Smith

There’s going to be an election soon. There will be posters with “Lamar Smith” on them and a picture of him. It would only be the work of a few moments to use a black marker to make it “Lamer” not Lamar. Then draw in the devil horns. Then write “CORRUPT” in big letters diagonally across the picture.

Come on, you American voters, do your duty.

SAG says:

Re: Re: In agreement

What I find especially contemptible about all this is the bad-programming-loop feel: try-fail-try-fail… and the inability of the players involved to understand that anyone who cares to look can see them as the tools they are.,

Trying the same thing over and over again; expecting a different result is the evidence that our elected officials are insane. There is no other interpretation that I can see.

On the bright side, with the rulling that the ACA is Constitutional, members of Congress and their lobyist enablers will have access to proper mental health services going forward and not be rejected for having a pre-existing condition…

Rekrul says:

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

They learned that to carry out their moral obligation to protect the corporations, they have to rush bills through the process as fast as possible so that the evil bloggers, internet companies and the public don’t interfere with their righteous mission. (I really wish that was a joke…)

Second, the statement is incredibly misleading, in that they suggest that they were always seeking feedback.

Yes, feedback from the entertainment industry. After all, they’re the only ones who should have input into these kinds of bills.

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.

Their job, as they see it, is to serve whatever industry gives them the biggest campaign contribution.

We’d just like them to actually acknowledge the public’s role in the process.

The public’s role in the process is to bend over and take whatever the corporations want them to.

Jessie (profile) says:


My god. The people in the HJC and Lamar Smith are complete and TOTAL MORONS!

Apparently, they must have had a memory lapse about the SOPA thing and they’re wondering why their bill didn’t go through.

I got an idea: because we all hated it with our slagging guts.

I bet that once this IPAA/really original guys goes down and goes boom in their face, they might get the hint this time.

Anonymous Coward says:

Re: Re:

Well, the one star state should try something new with the election, but it seems like it is still so biased towards republicants that it will be impossible to vote him out even though I think a lot of voters especially in the area around University of Texas will be very eager beavers to keelhaul him after the marijuana- and SOPA-protests.

[citation needed or GTFO] says:

Re: Re: Re:

The only reason that he got 80% of the vote was because the voters didn’t have anyone else as an alternative to vote for.

Reddit and TestPAC tried the billboards and the commercials, and the only one who even had an inkling of a chance (Sheriff Mack) couldn’t raise enough funds.

At this point, the only thing that can really dethrone him from his position is a PR nightmare that the non-netizens of Texas will out him for.

rubberpants says:

Go easy on them. There’s an election in November and they need to fill those war-chests. Why won’t you guys just let them do what they need to to get those all-important contributions?


All legislation is essentially fund-raising at this point. Federal elections should be publicly funded. That’s the best way to get our government back.

relghuar says:

Re: Re:

Publicly funded elections wouldn’t help much, I’m afraid. They’d just come up with something else to buy votes with. Mike always likes to say there are many valuable things besides money, and that doesn’t only go for entertainment.
As long as people are willing to elect politicians based on handouts and promises even if it’s absolutely clear (practically public, courtesy of Mr. Dodd) they’re corrupt, I don’t see many things that could help.
Nice big asteroid would be a bit extreme, but…. well.

Anonymous Coward says:

Since the hue and cry made with respect to SOPA related to censorship and security, it is a bit difficult to see how a provision such as this raises such ire here since it has nothing to do with censorship and security. Whether or not creating such a new position is a good thing is an altogether different matter.

robin (profile) says:

Re: Re:

…it is a bit difficult to see how a provision such as this raises such ire here…

Regulatory capture is your answer.

Yes, the mass realizations regarding censorship and security was what helped tip the fight against SOPA/PIPA, the discussion round here was, for quite a long time, far more wide-ranging.

The “ire” is actually quite consistent.

TtfnJohn (profile) says:

Change the rules?

This just in —
We have just learned that staffers on the HJC and staffers from other committees have met and proposed changes to House rules that will allow the to adopt the progressive, inclusive and successful transparency rules used by the the USTR during its recent successful efforts to get ACTA enshrined as an international treaty. The USTR has followed this up with unprecedented transparency, public consultation and efforts to ensure that members of the US Congress can follow the moment by moment progress of the coming TPP agreement.

Rules in the US House of Representatives will be changed to copy this highly transparent, democratic, consultative process beginning Friday, July 13th at 12:01AM EDT.

Beginning at 12:02AM EDT please contact your Senator or Congressman at

Please remember that we are working for YOU, the citizenry of the United States. Improving legislative clarity, transparency, efficiency and efficacy.

quawonk says:

Yes, Lamar Smith has learned something from SOPA:

1. They must rush it through before the public and major websites have a chance to act.

2. They must keep the next one even more super secret so the people wouldn’t even so much as know its name until it’s passed (and I’d bet such a thing is being worked on right now)

As for the democratic will of the people, he and his industry paymasters know full well what our response is, that’s WHY they do these backroom deals.

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