American Society of Magazine Editors

Congressional Efforts to Fight Piracy Become Increasingly Controversial

Legislation aimed at fighting online piracy and counterfeiting on “rogue” websites continues to advance, creating a global outpouring of opinion, and pitting two powerful industries against each other.

Recognizing the significant impact and harm piracy has on copyright dependent industries like magazines, movies, music, and clothing, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) is once again pursuing legislation – supported by MPA – aimed at addressing the impact “rogue” sites are having on business within those industries. With the Combating Online Infringement and Counterfeits Act (COICA) failing to advance in the 110th Congress, in May, Chairman Leahy introduced an updated version of COICA, known as the PROTECT IP Act (PIPA). Like COICA, PIPA would empower the Attorney General to seek a court order to shut down the domain name of a foreign infringing site that is “dedicated to” or has “no significant use” beyond copyright or trademark infringement. It also authorizes the Attorney General to direct U.S. based third-parties, including Internet Service Providers, payment processers, online advertising network providers, and search engines to take appropriate action to either prevent access to the site, or cease doing business with it. While providing immunity to websites that sold a product that turned out to be counterfeit, PIPA would allow a copyright or trademark holder to ask a judge to compel internet advertising agencies and financial services firms (i.e. MasterCard) to discontinue processing payments or providing services to the rogue sites. The bill unanimously passed out of the Senate Judiciary Committee in late May.

Like his counterpart in the Senate, House Judiciary Committee Chairman Lamar Smith (R-TX) has also introduced rouge sites legislation. Following spring hearings on the issue, after several months of delay, Chairman Smith introduced his bill in late October with a hearing following shortly after. Like PIPA, the Stop Online Piracy Act (SOPA), is designed to shut down foreign websites committing copyright infringement by cutting off their funding and shrinking their U.S. audience. SOPA, however, has some key distinctions that have many parties, including prominent internet companies like Google, Amazon, and Facebook, extremely concerned. They include a definition of rogue sites that critics deem to be “dangerously” overbroad, (defining a rogue site as merely “facilitating” copyright infringement) as well as limited due process considerations in the private right of action copyright and trademark holders have when asking payment processors and advertising networks to cut off funding for an offending site. In contrast to the unanimous approval of PIPA in the Senate, after 14 hours of an often acrimonious markup held shortly before the Christmas recess, and despite pushing strongly for passage, Chairman Smith pulled the bill from Committee consideration, delaying further action on the bill until later this month.

Despite the setback in the House for supporters of the bill, shortly before the Senate adjourned, Senate Majority Leader Harry Reid (D-NV) indicated he would challenge the hold Senator Ron Wyden (D-OR) has on the bill, and make PIPA the first bill the Senate considers in 2012. With opinion on the bill at an all-time high, and advocates on both sides primed for the fight, the outcome is uncertain. If the bill wins passage, it could likely become the template the House follows; if the bill fails to gain enough votes to break the hold and advance, it may indicate that rouge sites legislation could have trouble advancing in 2012.