1/20. Sen. Harry Reid (D-NV), the Senate Majority Leader, announced in a release that "In light of recent events, I have decided to postpone Tuesday’s vote on the PROTECT I.P. Act".

In addition, Rep. Lamar Smith (R-TX), sponsor of the Stop Online Piracy Act (SOPA) in the House, announced that the House Judiciary Committee (HJC) "will postpone consideration of the legislation until there is wider agreement on a solution". Previously, he stated that the HJC would delay until February.

Back in December of 2011, Sen. Reid announced that on January 23 the Senate would begin consideration of S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", "PROTECT IP Act", or "PIPA".

Sen. Reid's announcement, along with Rep. Smith's announcements, constitute a major victory for Google and the other technology companies that oppose these rogue web sites bills, and a significant defeat for the content companies that support these bills.

Sen. Patrick Leahy (D-VT), sponsor of the Senate bill, and Chairman of the Senate Judiciary Committee (SJC), responded that the Senate's failure to take up this bill is "knee-jerk reaction".

Content industry groups expressed their disappointment. Groups that advocate the interests of Google and other tech sector companies praised the postponements.

Sen. Reid (at right) wrote that "There is no reason that the legitimate issues raised by many about this bill cannot be resolved. Counterfeiting and piracy cost the American economy billions of dollars and thousands of jobs each year, with the movie industry alone supporting over 2.2 million jobs. We must take action to stop these illegal practices. We live in a country where people rightfully expect to be fairly compensated for a day's work, whether that person is a miner in the high desert of Nevada, an independent band in New York City, or a union worker on the back lots of a California movie studio."

He added that "I admire the work that Chairman Leahy has put into this bill. I encourage him to continue engaging with all stakeholders to forge a balance between protecting Americans’ intellectual property, and maintaining openness and innovation on the internet. We made good progress through the discussions we’ve held in recent days, and I am optimistic that we can reach a compromise in the coming weeks."

Sen. Reid does not make a practice of bringing bills to the floor, and consuming Senate time, when he does not expect the bill to pass, unless there is some broader political and partisan strategy involved, which is not the case with the PROTECT IP Act. Moreover, there are many other bills whose proponents are competing for Senate floor time in the next few months. This may include several cyber security bills, and a spectrum bill.

While Sen. Reid also stated that "I am optimistic that we can reach a compromise in the coming weeks", the Congress may not pass a rogue web sites bill for some time. The primary activities of some of the internet and technology companies that oppose these bills are a Congressional lobbying campaign directed at obstruction and delay, and a grass roots lobbying campaign built on dissemination of hyperbole and disinformation. These companies are not seeking the sort of engagement and discussion that would produce consensus legislation.

Moreover, with a Presidential election that may replace the administration, and Congressional elections that may switch party control in the Senate, less than 10 months away, there is little time left to produce new legislation. Opponents are keenly aware of, and base their strategy upon, this schedule.

If President Obama were to lose in November, then there would be further delay in addressing rogue web sites as the new administration fills positions, seeks Senate confirmations, and comes up to speed with the issues involved in this legislation. Furthermore, there is the possibility that there will be many new Senators, new Committee Chairmen, and new staff, in the 113th Congress, which would also have a delaying effect.

As a consequence, content companies and their allies in the Congress may soon be faced with targeting their efforts towards enactment of a rogue web sites bill in late 2013, or 2014.

Sen. Leahy (at right) is upset with the course of recent events. He first introduced a rogue web sites bill in late 2010. The SJC reported a bill in the 111th, and a revised bill in the current Congress, over seven months ago.

He wrote in a release that "Somewhere in China today, in Russia today, and in many other countries that do not respect American intellectual property, criminals who do nothing but peddle in counterfeit products and stolen American content are smugly watching how the United States Senate decided it was not even worth debating how to stop the overseas criminals from draining our economy."

"In the meantime," said Sen. Leahy, "more time will pass with jobs lost and economies hurt by foreign criminals who are stealing American intellectual property, and selling it back to American consumers."

He concluded that "I remain committed to addressing this problem; I hope other members of Congress won't simply stand on hollow promises to find a way to eliminate online theft by foreign rogue websites, and will instead work with me to send a bill to the President's desk this year."

Rep. Smith, sponsor of  HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA", stated in a release that "It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products".

He also said that the HJC "will continue work with copyright owners, Internet companies, financial institutions to develop proposals that combat online piracy and protect America’s intellectual property.  We welcome input from all organizations and individuals who have an honest difference of opinion about how best to address this widespread problem.  The Committee remains committed to finding a solution to the problem of online piracy that protects American intellectual property and innovation."

Rep. Darrell Issa (R-CA) stated in a release on January 20 that "Postponing the Senate vote on PIPA removes the imminent threat to the Internet, but it's not over yet. Copyright infringement remains a serious problem and any solution must be targeted, effective, and consistent with how the Internet works."

He also touted his bill, HR 3782 [LOC | WW], the "Online Protection & Enforcement of Digital Trade Act", or "OPEN Act". See, story titled "Rep. Issa Introduces Alternative to SOPA" and "Comparison of the Key Processes of SOPA and OPEN Act" in TLJ Daily E-Mail Alert No. 2,331, January 18, 2012.

Rep. Issa added that "It is clear that Congress needs to have more discussion and education about the workings of the Internet before it moves forward on sweeping legislation to address intellectual property theft on the Internet. I look forward to working with my colleagues and stakeholders to achieve a needed consensus about the way forward."

1/20. Groups that articulate the interests of the technology and content companies reacted to the announcements by Congressional leaders that further consideration of rogue web sites bills will be delayed.

Reaction from Opponents of SOPA and PROTECT IP Act. Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "Those who value and appreciate the Internet can breathe a little easier today." He added that the internet needs to be protected "from those who would undermine its fundamental principles for parochial purposes".

The Public Knowledge (PK) stated in a release that "Momentum is on our side, but proponents of PIPA and SOPA are going to double down in an effort to push legislation through". It added that the internet must be protected from "the kinds of policies that cripple critical networks merely because a few companies have not figured out how to adapt to them".

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release that innovation "must not be blocked by one industry seeking to protect itself at the expense of another". He also said that Rep. Issa's OPEN Act "can and should be passed immediately".

Leslie Harris, head of the Center for Democracy and Technology (CDT), stated in a release that "Senator Reid made the right decision in postponing next week's vote on PIPA. It's time for a hard reset on this issue. We need a thoughtful and substantive process that includes all Internet stakeholders. We need to take a hard look at the facts and find solutions that honor the Internet's openness and its unique capacity for innovation and free expression. We are thankful for the efforts of Senator Ron Wyden who from the beginning stood against this bill; his early opposition and leadership gave voice to the important concerns of the Internet community."

Craig Aaron of the Free Press stated in a release that "While the PROTECT IP Act and its House counterpart, the Stop Online Piracy Act, are still kicking around the corridors of Capitol Hill, our elected members of Congress would be wise to relegate these bad bills to the dustbin of history."

Reaction from Supporters of SOPA and PROTECT IP Act. Former Sen. Chris Dodd (D-CT), now head of the Motion Picture Association of America (MPAA), stated in a release that "As a consequence of failing to act, there will continue to be a safe haven for foreign thieves; American jobs will continue to be lost; and consumers will continue to be exposed to fraudulent and dangerous products peddled by foreign criminals".

Cary Sherman, head of the Recording Industry Association of America (RIAA), stated in a release that "The Senate had an opportunity to have a national conversation about an important and urgent issue: protecting American workers and consumers from foreign criminals. It is a shame that the Senate will not have that debate next week."

Sherman added that "This issue is too important, too vital to our economy, to let misleading demagoguery have a veto over meaningful reforms."

Sandra Aistars, head of the Copyright Alliance, stated in a release that "We will to continue to engage and we look forward to working with all constructive voices to find a meaningful legislative solution, with the understanding that any such solution must include meaningful remedies for independent artists and creators to effectively combat the mounting problem of rogue websites."

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
3034 Newark St. NW, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2012 David Carney. All rights reserved.

Day three of a three day event titled "House Republican Issues Conference".

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. No technology related items on are the agenda. See, Rep. Cantor's schedule for the week.

The Senate will meet at 2:00 PM for morning business. The Senate may also consider S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" or "PROTECT IP Act".

6:00 - 9:15 PM. The DC Bar Association will host a program titled "Introduction to Export Controls". The speakers will be Carol Kalinoski (solo practitioner) and Thomas Scott (Ladner & Associates). The price to attend this and the companion program on February 8 ranges from $169 to $229. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

The House will meet 10:00 AM for morning hour, and at 12:00 NOON for legislative business. No technology related items on are the agenda. See, Rep. Cantor's schedule for the week.

The Senate will meet.

State of the Union speech.

9:30 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a discussion of the book [Amazon] titled "Restoring the Innovation Edge". The speakers will include the author, Jerald Hage (University of Maryland). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K Street, NW.

10:00 AM. Day one of a two day mark up session of the House Judiciary Committee (HJC). The agenda does not include either HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA", or HR 3782 [LOC | WW], the "Online Protection & Enforcement of Digital Trade Act" or "OPEN Act". Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

The House will meet at 9:00 AM for morning business. No technology related items on are the agenda. See, Rep. Cantor's schedule for the week.

Day one of a three day event titled "House Democratic Issues Conference".

10:00 AM. Day one of a two day mark up session of the House Judiciary Committee (HJC). Location: Room 2141, Rayburn Building.

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Oversight, Investigations and Management will hold a hearing titled "Is DHS Effectively Implementing a Strategy to Counter Emerging Threats?". See, notice. Location: Room 311, Cannon Building.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications and State and Local Practice Committees will host a brown bag lunch titled "Emergency Communications Policy Issues in the National Capitol Region". The speakers will be interoperability coordinators for the national capital region (NCR), Michele Farquhar (Hogan Lovells), Chris Essid (Director of the DHS's Office of Emergency Communications (OEC), and Trey Forgety (National Emergency Number Association). For entry upon arrival, call Alex Kreilein (DHS/OEC) at 202-603-8702. Location: Bureau of Alcohol, Tobacco, and Firearms, Room 3200, 650 Massachusetts Ave., NW.

5:00 - 7:00 PM. The Net Caucus will host an event titled "15th Annual Kickoff Tech Policy Exhibition & Reception". Free. Open to the public. Location: Room 902, Hart Building.

The House will not meet. See, Rep. Cantor's schedule for the week.

Day two of a three day event titled "House Democratic Issues Conference".

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of the nomination of Paul Watford to be a Judge of the U.S. Court of Appeals (9thCir). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Andrew Hurwitz (to be a Judge of the U.S. Court of Appeals (9thCir)), Kristine Baker (USDC/EDArk), John Lee (USDC/NDIll), John Tharp (USDC/NDIll), and George Russell (USDC/DMd). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed meeting. See, notice. Location: Room 219, Hart Building.

The House will not meet. See, Rep. Cantor's schedule for the week.

Day three of a three day event titled "House Democratic Issues Conference".

Deadline to submit comments to the Securities and Exchange Commission's (SEC) Advisory Committee on Small and Emerging Companies in advance of its February 1, 2012, meeting. See, notice in the Federal Register, Vol. 77, No. 9, Friday, January 13, 2012, at Page 2102.

1/20. Rep. Lamar Smith (R-TX) commented on HR 3782 [LOC | WW], the "Online Protection & Enforcement of Digital Trade Act", or "OPEN Act", introduced by Rep. Darrell Issa (R-CA) on January 18, 2012, as an alternative to the rogue web sites bill sponsored by Rep. Smith.

See, story titled "Rep. Issa Introduces Alternative to SOPA" in TLJ Daily E-Mail Alert No. 2,331, January 18, 2012. Rep. Smith is the sponsor of HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA".

Rep. Smith stated in a release that "The OPEN Act makes the ITC a substitute for U.S. courts which have handled intellectual property cases since the founding of our country. Forcing individuals to come to Washington and hire expensive, specialized ITC lawyers, and argue their case before the ITC, means that only wealthy corporations will have the means to argue their claims. Under the Stop Online Piracy Act small businesses, entrepreneurs and innovators will be able to protect their property and Constitutional rights by going to federal courts wherever they live."

He said that Rep. Issa's bill "amounts to a safe harbor for foreign criminals who steal American technology, products and intellectual property", and that it "creates loopholes that make the Internet even more open to foreign thieves".

Like many opponents of his bill, Rep. Smith is engaging in hyperbole to criticize this bill.

He elaborated that OPEN Act "bill narrows the definition of an illegal infringing site to such an extreme that it will be virtually meaningless and nearly impossible to prove."

HR 3782 provides that an "Internet site dedicated to infringing activity" is "is accessed through a nondomestic domain name" and "conducts business directed to residents of the United States". These two qualifications merely limit these ITC actions to foreign rogue web sites that ship, stream or send infringing items to the US.

However, the definition next provides that the web site in question "has only limited purpose or use other than engaging in infringing activity and whose owner or operator primarily uses the site" to infringe or circumvent. This would like preclude bringing these ITC actions against those linking web sites which also link to much non-infringing content, and those storage locker services that contain both infringing and non-infringing content.

Then, the definition provides the condition that the web site operator uses the web site primarily to infringe under 17 U.S.C. § 506, violate the anti-circumvention provisions of 17 U.S.C. § 1201, or use counterfeit marks in violation of 15 U.S.C. § 1116(d). That is, in the case of digital infringement, this definition would require proof of criminal infringement, which includes willfulness, and commercial advantage or private financial gain. This does raise the burden upon the claimant.

Taken together, the components of this definition would place some bad actors beyond the reach of the ITC, and make it more difficult meet the evidentiary burden as to other rogues. However, Rep. Smith's use of the phrase "virtually meaningless" is an overstatement.

Rep. Smith also asserted that "Under the OPEN Act, even sites like Pirate Bay that openly promote online piracy would only be held accountable if the owner or operator agrees to appear before the ITC and be bound by its judgment."

He did not elaborate. However, the OPEN Act affords foreign web site operators the means to evade action by the USITC. For example, if the web site operator consents to the jurisdiction of the U.S. courts, and accepts service of process, then claimants have no action before the USITC. However, a foreign web site operator might then ignore the judgment of the U.S. court, and continue with its infringing activity. While this bill provides that a USITC order could compel financial transaction providers and internet advertising services to cease providing financial and advertising services to the foreign web site, nothing in this bill provides that the U.S. District Court may grant such relief.

Rep. Smith also directed his ire at the company that has done the most to derail his rogue web sites bill, Google.

He wrote that "Google paid $500 million to settle a criminal investigation for promoting foreign illegal online pharmacies, possibly endangering Americans' health. The OPEN Act excludes search engines like Google from responsibility when it comes to enforcement of IP rights, even when they knowingly profit by directing consumers to illegal websites."

See, story titled "Google to Pay $500 Million for Allowing Its AdWords Program to be Used to Promote Illegal Online Drug Sales" in TLJ Daily E-Mail Alert No. 2,292, August 24, 2011. Under Rep. Smith's bill, but not under Rep. Issa's bill, a search engine could be compelled to not return hyperlinked search results for the foreign rogue web sites covered an order of the court or USITC.