Executive Corner

What I Learned at CES: PIPA is the New SOPA

SOPA seems to be breathing its last!  Although Rep. Smith has indicated that he’ll remove the controversial DNS blocking provisions of the bill, we’ve heard that the bill is so poisoned, hearings won’t resume, essentially killing the bill.  That’s a huge victory for the Internet industry. This bill had big money interests behind it, and we in the Internet community were outspent to a ridiculous degree — but at the end of the day our voices were heard. Victory, right?

Not so fast!

Last week I got the chance to represent the Internet infrastructure community at the Consumer Electronics Show. Through a series of panel discussions, public gatherings and private meetings I got to talk with lawmakers, artists, content owners, businesspeople and lobbyists to discuss what things look like “behind the scenes” with regard to intellectual property protection legislation. In particular, I got to spend some quality time, one-on-one with Sen. Ron Wyden (D-OR) and Rep. Darrell Issa (R-CA), the lawmakers leading the charge against PIPA and SOPA. In those discussions, I was able to not only share what we in the Save Hosting Coalition were doing to fight these bills; perhaps more importantly, I got a clear sense of what we all still have to do before we can celebrate any kind of meaningful victory.

We’ve seen three exciting things happen over the past few days regarding PIPA and SOPA. The momentum is on our side! But I left CES convinced that our quickest path to defeat will be mistakenly convincing ourselves we’ve already won. Let’s take a look at what we now know:

  1. The authors of both PIPA and SOPA have agreed to drop the controversial DNS provisions.
  2. The White House has issued a statement that indicates they wouldn’t be able to support either bill in their current formats.
  3. Leadership in the House of Representatives has indicated that SOPA will not be coming up for a vote anytime soon.

Let’s Look carefully at each of these points:

1)  The authors of both PIPA & SOPA have agreed to drop the controversial DNS provisions.

Unfortunately, eliminating these provisions will not fix all of the problems that these bills present to the hosting industry. From my perspective, the largest issue with these bills has always been the “Private Rights of Action.” “Private action” essentially means that anybody — not just the government — can sue any web site owner, or host for that site, for making intellectual property theft possible.  If you’re a host, and a competitor of yours wants to shut you down, these bills would give them the right to accuse your customers of hosting illegal content — and to sue you for being an accomplice to that crime. These “Private Rights of Action”, coupled with the bills’ “anti-circumvention” provisions, will lead to SOPA or PIPA being used as tools to bring lawsuits against domestic Internet providers. At the end of the day, that’s what threatens hosting providers most in these bills.

Proponents of these bills say that they are exclusively targeting foreign rogue websites. No matter what their intentions, it won’t work that way in practice. Under current law, the DMCA, we are seeing a ton of fraud, a ton of anti-competitive use, and a ton of “nuisance lawsuits” brought against hosting providers to try to secure quick cash settlements. Penalties under PIPA and SOPA are far more destructive and long-lasting — so if the same proportion of SOPA/PIPA takedown requests are fraudulent, or just misinformed, we could see an astonishing number perfectly legal online businesses shut down.  This would have a chilling effect on the growth of the internet economy.

2)  The White House has issued a statement saying they would not support either bill in their current formats.

Everybody I spoke with at CES still thinks that the White House would support an amended bill that removed many of the most egregious problems, such as the DNS component. Nobody from the White House has indicated problems with the right of private action or the anti-circumvention provisions — the ones that would do the most damage to the Internet as we know it.

3)  Leadership in the House of Representatives has indicated that SOPA will not be coming up for a vote anytime soon.

That’s the big one — the one that has everybody shouting off the rooftops about how we’ve won.  The sad truth is that those people are wrong.  There’s a good chance we’re all about to lose — and lose big — as early as January 24th, unless we keep fighting.

PIPA, the Senate counterpart bill to SOPA, has 90% of the problems SOPA has, but 10% of the name recognition. It is very much alive, and very much a threat. Right now, PIPA is being held up by a procedural measure, called a “hold,” that was placed by Senator Wyden. This hold effectively keeps the bill from floor debate and an up-or-down vote — which is something we want because it will give us more time to educate legislators on why PIPA would be bad for the industry, and for the nation.  (Side note:  the day after Save Hosting Coalition met with Sen. Jerry Moran (R-KS) and the Chief of Staff from Sen. Maria Cantwell’s (D-WA) office, Sens. Cantwell, Moran and Rand Paul (R-KY) joined Wyden’s hold. I can’t tell you how excited we were to be a part of securing their support!)

Senator Harry Reid (D-NV) plans to call what’s called a “cloture” vote on January 24th to end the hold and bring PIPA to floor vote as soon as possible. It takes 60 votes to win a cloture vote. Voting for cloture doesn’t mean you approve of the bill, it just means you think it should be brought up for a vote.

Once PIPA is brought to the floor, it is likely to pass. PIPA has 40 bipartisan co-sponsors and only needs 51 votes. If PIPA passes, we can expect the House of Representatives to shift its strategies away from SOPA and towards just passing its own version of PIPA.

All this means that the game of dominos could start on January 24th and end very quickly if things don’t go our way! If PIPA is closed for debate on the 24th it will likely pass the Senate soon thereafter. It could end up becoming law in no time, regardless of what happens to SOPA.

So put away the champagne and help spread the word that “PIPA is the new SOPA.” In the coming days, the Save Hosting Coalition will be starting a campaign to get people to call their Senators and tell them to vote against cloture on PIPA. More details will follow, but for now just remember that although we are winning this fight, the only way we can keep winning is if we keep fighting and remember that we haven’t already won.

Photo by Andrew Dallos

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