TLJ News from December 16-20, 2011

Copyright Office Seeks Comments on Proposed Anticircumvention Exemptions

12/20. The Copyright Office (CO) published a Notice of Proposed Rulemaking (NPRM) regarding designating exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). This pertains to the fifth triennial rulemaking required by the 1998 DMCA.

See, notice in the Federal Register, Vol. 76, No. 244, December 20, 2011, at Pages 78866-78868.

This notice announces two deadlines. The deadline to submit comments is 5:00 PM on February 10, 2012. In addition, this notice states that "A proponent of a particular class of works will not be permitted to submit an initial comment in support of that class in response to this Notice unless, at least 15 days before the deadline for comments (i.e., before January 27, 2012), the proponent has submitted a written request for permission to submit an initial comment demonstrating good cause to permit the submission of the comment, and the Office has approved the submission of the comment." (Parentheses in original.)

On September 29, 2011, the CO published a Notice of Inquiry (NOI) in this proceeding, which notice requested comments. See, notice in the Federal Register, and story titled "Copyright Office Opens 5th Triennial Proceeding on DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,306, September 29, 2012.

The CO website contains a page that lists, summarizes, and provides hyperlinks to, comments submitted in response to the September 29 NOI. See also, related story in this issue titled "Summary of Proposed Exemptions to Anticircumvention Provisions § 1201".

Summary of Section 1201. The anti-circumvention provisions of the DMCA are codified at 17 U.S.C. § 1201, et seq. Subsection 1201(a)(1)(A) provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title ...".

Then, § 1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"

Furthermore, § 1201(b)(1)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; ..."

Then, Subsections 1201(a)(1)(B) through (E) provide for rulemaking proceedings conducted by the CO every three years to establish exemptions to the prohibition of (a)(1)(A) for certain non-infringing uses.

Exemptions Currently in Effect. The rules currently in effect, which are codified at 37 C.F.R. § 201.40, designate six exemptions to the prohibition: (1) certain movies on DVD protected by CSC, (2) certain programs that enable wireless phones (especially the iPhone) to execute software applications, (3) programs that enable used wireless phones to connect to a wireless telecommunications network if allowed by the network operator, (4) certain video games, for the purpose of investigating or correcting security flaws, (5) certain programs protected by dongles, and (6) e-book when all e-book editions of the work do not allow read aloud functions.

See also, story titled "Copyright Office Releases 4th Triennial DMCA Exemptions" in TLJ Daily E-Mail Alert No. 2,115, July 30, 2010. The CO was late in releasing its fourth set of rules. The FR notice states that the CO will release it 5th triennial rules by February 15, 2012.

Prior Triennial Reviews. The CO published its third triennial review exemptions on November 27, 2006. See, notice in the Federal Register, November 27, 2006, Vol. 71, No. 227, at Pages 68472-68480. These exemptions were effective from November 27, 2006 through October 27, 2009, and then extended through July 27, 2010.

See also, stories titled "Copyright Office Announces Proceeding on DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 1,229, October 7, 2005; "Copyright Office Delays Release of Triennial DMCA Exemptions Rule" in TLJ Daily E-Mail Alert No. 1,478, October 30, 2006; and "Copyright Office Releases DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 1,494, November 27, 2006.

The CO published its second triennial review exemptions in a notice in Federal Register, October 31, 2003, Vol. 68, No. 241, at Pages 62011-62018.

The CO published its first triennial review exemptions in a notice in Federal Register, October 27, 2000, Vol. 65, No. 209, at Pages 64555-64574.

Summary of Proposed Exemptions to Anticircumvention Provisions § 1201

12/20. The Copyright Office (CO) is conducting its fifth triennial rulemaking proceeding to designate exemptions to the anti-circumvention provisions of the 1998 Digital Millennium Copyright Act (DMCA). The CO has received numerous comments that propose one or more exemptions. The CO website contains a page that lists, summarizes, and provides hyperlinks to, these comments. This article summarizes key proposals.

If someone employs technological measures that effectively controls access to a work protected by copyright, then § 1201 prohibits circumvention of such measures. The purpose of the DMCA is to limit unauthorized copying and distribution of digital works protected by copyright, thereby furthering the ability of copyright holders to derive revenues from sales of sales of copies, streaming, or other forms of distribution.

One theme that runs through many of the significant pending comments is that exemptions ought to be created when someone is using a technological measure that effectively controls access to a digital work, but the purpose is not to protect its revenue stream from a copyrighted work, but rather to protect some other commercial interest.

In particular, some businesses use technological measures and assertion of § 1201 to tie or bundle products and services together. Some businesses use § 1201 to leverage their position in the market with respect to one product or service to compel or incent consumers to also consume their other products or services. Commenters argue that it is not a purpose of copyright law generally, or the DMCA specifically, to protect this strategy. They seek exemptions that would further consumers' choice of products and services in the face of attempts to tie and bundle.

For examples, proposed exemptions would preclude companies from asserting violation of § 1201 to prevent jailbreaking wireless devices from the designated wireless service, and to undermine the Google Android and iPhone app store distribution model.

Other proposed exemptions address the use of technological measures to protect digital copies of books that are in the public domain, circumvention of digital copies movies associated with extraction of portions, circumvention of digital copies of movies associated with hearing disability accessibility, and circumvention of e-books associated with vision disability accessibility.

Expanding the Interoperability and Network Connection Exemptions. The current rule contains two relevant exemptions that commenters seek to have extended and broadened.

First, there is an exemption for "Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset."

Second, there is an exemption for "Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network."

The Software Freedom Law Center (SFLC) submitted a comment in which it proposed an exemption for "Computer programs that enable the installation and execution of lawfully obtained software on a personal computing device, where circumvention is performed by or at the request of the device's owner."

The SFLC proposal would expand the current concept from "wireless telephone handsets" to any "personal computing device", including tablet computers and e-book readers, as well as laptop and desktop computers.

This proposal seeks in part to undermine the enforceability of the app store distribution model used by Apple iOS and Google Android, and deter the spread of this business model to other platforms.

The SFLC argues that the basic principle behind its request is that "technological protection measures should not restrict device owners from running whatever software they choose simply because such restrictions serve the manufacturers' interests".

It argues that app store model "restrictions threaten to give operating system vendors monopolistic control over application development and distribution on what have previously been unrestricted platforms that engendered competition in the market and enabled user control".

The SFLC proposal would also expand the concept of the current rule to include the operating systems of personal computing devices.

The SFLC proposes to allow circumvention for both application locks, and operating system locks.

It notes that the device makers argue that this is necessary for security reasons. However, the SFLC counters that users also circumvent operating system locks to protect their security. It wrote that such locks "prevent the user from removing spyware intentionally installed by the manufacturer. This malicious software, which reports a user's activity to the carrier or manufacturer, is itself a security risk and a significant privacy intrusion. iOS and Android phones continuously (and often secretly) report their users' physical location to Apple or Google. As typically configured by Google and its partners, Android funnels a huge portion of a user's communications through Google's servers, giving Google access to most of a user's important interactions. The only way to definitively disable all such tracking is to replace the preinstalled operating system with a free software version that is verifiably free of spyware." (Footnote omitted. Parentheses in original.)

The Electronic Frontier Foundation (EFF) submitted a comment in which it proposed two related exemptions. First, it proposed expanding the current interoperability exemption to include "tablets".

Second, it proposed a new interoperability exemption for "video game consoles". It states that Sony, Microsoft, and Nintendo all "have deployed technical restrictions that force console purchasers to limit their operating systems and software exclusively to vendor-approved offering". It argues that such restriction "severely constrains not only consumer choice and the value of the console to its owner, but also the incentives for independent developers to create copyrightable systems and software that would expand the marketplace for these devices".

The Consumers Union submitted a comment in which it proposed an exemption that would expand the network connection exemption. It would cover "Computer programs, in the form of firmware or software, including data used by those programs, that enable mobile devices to connect to a wireless communications network, when circumvention is initiated by the owner of the device to remove a restriction that limits the device's operability to a limited number of networks, or circumvention is initiated to connect to a wireless communications network."

This would expand the current rule in many ways. For example, it would expand from the current "wireless telephone handsets" to any "mobile device", which would encompass tablets, e-book readers, and other devices.

It would also encompass not only accessing programs and software, but also "data used by those programs".

Other commenters also proposed expanding the network connection exemption. See, comment of Youghiogheny Communications, comment of MetroPCS Communications, and comment of the RCA.

TPMs that Protect Books in Public Domain. The Open Book Alliance (OBA) submitted a comment in which it proposed an exemption for circumventing technological protection measures (TPM) that protect "digital copies of literary works in the public domain". The proposed exemption would not be limited to Google, but it is directed at Google's business practices.

The OBA explains that Google, through "systematic scanning" at large libraries, "has reproduced millions of books in their entirety, including both those in the public domain" and those under copyright. The OBA adds that contracts between Google and these libraries require the libraries to implement TPMs to restrict automated access to any portion of the scanned books, including those in the public domain, that are in the libraries' web sites.

The OBA states that this exemption would have "no effect on TPMs used under authority of a copyright owner to protect its copyright. Rather, it focuses on the TPMs used by Google to benefit its business interests in restricting online access to public domain works."

The anticircumvention provisions § 1201 apply only to a "a work protected under this title". This title -- Title 17 -- only protects works subject to copyright. Hence, the OBA's proposal would not create an actual exemption.

The OBA concedes as much in the comment submitted to the CO. It wrote, "To be clear, we are aware of no reason that a technological protection measure applied to a public domain work would give rise to liability under Section 1201." Nevertheless, the OBA wants the CO to render a conclusion, or adopt an exemption.

However, the OBA states differently in its web site. "TPMs like the ones Google requires are backed up by the force of law, specifically Section 1201 of the Digital Millennium Copyright Act. That law imposes civil and criminal penalties on anyone who tries to circumvent or disable TPMs without permission of the copyright owner. We believe strongly that this law should never be used by Google to threaten civil and criminal liability on users of digital public domain books, particularly where such threats could cause substantial harm to competition."

It might be argued that the OBA's real objection is not to the operation of the DMCA, but rather to the contracts between Google and libraries. However, if the CO were to create an exemption, the contracts would remain in effect. Moreover, the CO has no authority to abrogate contracts. Other options open to the OBA include complaining to the Federal Trade Commission (FTC) or Department of Justice (DOJ) Antitrust Division that Google is engaging in anticompetitive practices in violation of antitrust law, or that it is engaging in unfair or deceptive trade practices in violation of the FTC Act.

The OBA is represented by Gary Reback, an antitrust lawyer who focused attention on Microsoft in the 1990s.

Circumvention of Movies Associated with Extraction of Portions. Numerous commenters asked for an exemption the would continue and expand the current exemption for accessing portions of movies.

The current exemption is as follows:

"Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
  (i) Educational uses by college and university professors and by college and university film and media studies students;
  (ii) Documentary filmmaking;
  (iii) Noncommercial videos."

For example, the University of Michigan (UM), which operates a large library system, and has entered into one of the anticompetitive contracts with Google complained about by the Open Book Alliance (OBA), submitted a comment that seeks a DMCA exemption for its own benefit.

The UM wants the current exemption extended, and expanded. It wants the exemption to apply to anyone at a college or university, and not just those in film and media studies. The UM also want the exemption to apply to any works, and not just "Motion pictures on DVDs".

The EFF's comment seeks one exemption to cover "Audiovisual works on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where circumvention is undertaken for the purpose of extracting clips for inclusion in primarily noncommercial videos that do not infringe copyright, and the person engaging in the circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use."

The EFF seeks a second parallel exemption for "Audiovisual works that are lawfully made and acquired via online distribution services ... and the works in question are not readily available on DVD".

See also, related comment of the International Documentary Association and others that seeks one exemption for "documentary filmmaking" or "fictional filmmaking", and a second exemption "to obtain the motion picture for multimedia e-book authorship".

See also, comment of the Library Copyright Alliance seeking renewal of the current exemption.

See also, comment of the Peter Decherney and others seeking an expanded exemption that would reach "all audio visual works" and be available to "college and university students or faculty".

Circumvention Associated with Hearing and Vision Disability Accessibility. There is currently an exemption: "Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format."

The American Council of the Blind (ACB) and the American Foundation for the Blind (AFB) submitted a comment that requests an exemption for any electronic literary work that "(i) contains digital rights management and/or other access controls which either prevent the enabling of the book’s read-aloud functionality or which interfere with screen readers or other applications or assistive technologies that render the text in specialized formats; and (ii) is legally obtained by blind or other persons with print disabilities (as such persons are defined in section 121 of Title 17, United States Code), or is legally obtained by authorized entities (as defined in such section) distributing such work exclusively to such persons." (Parentheses in original.)

The Telecommunications for the Deaf and Hard of Hearing, Inc., Gallaudet University, and Participatory Culture Foundation submitted a comment that lists five new exemptions related to making movies and other audiovisual works accessible to persons with disabilities.

Miscellaneous Comments. The CO also received numerous other comments that request exemptions. Some are brief, and some are less likely to result in the designation of an exemption.

The Public Knowledge (PK) submitted a comment requesting an exemption for "Motion pictures on lawfully made and lawfully acquired DVDs that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the noncommercial space shifting of the contained motion picture."

Another comment seeks an exemption for all "audiovisual works used for educational purposes by kindergarten through twelfth grade educators". This exemption would not be limited to clips or portions. Nor would it be limited to the purpose of criticism or commentary.

Another comment states that circumvention should be allowed "for any and all personal use, including back-ups, copying, format conversion, and transfer".

Another comment states that circumvention should be allowed "for the purpose of making backups" and "for the purpose of personally reading (or listening or viewing) legally acquired material in a format or on a device of the user’s choice". (Parentheses in original.)

Another comment states that circumvention should be allowed "for the purpose of format shifting and backing up their files".

Another comment states that circumvention should be allowed "in order to exercise fair use" and for format and device shifting.

Another comment states that circumvention should be allowed, in the case of a discontinued e-book format, "in order to preserve the doctrine of first sale and ensure that legal purchasers of protected works will have continued access to those works".

OUSTR Releases Notorious Markets Report

12/20. The Office of the U.S. Trade Representative (OUSTR) released a report [6 pages in PDF] titled "Out-of-Cycle Review of Notorious Markets".

This report lists web sites that might be targeted by the Department of Justice (DOJ) if the Congress were to enact into law HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA", which is currently under consideration by the House Judiciary Committee (HJC). This report also lists physical markets in other countries.

Ron KirkRon Kirk (at right), the USTR, stated in a release that "Piracy and counterfeiting continue to present a serious challenge to the innovation and creativity that is essential to supporting American jobs and creating economic growth around the world. The notorious markets highlighted in this review negatively impact legitimate businesses and industries of all sizes that rely on intellectual property to protect their goods and services".

This report states that notorious markets are "selected markets, including ones on the Internet, that are reportedly engaged in piracy and counterfeiting, according to information submitted to the" OUSTR.

See, full story.

AT&T and T-Mobile Abandon Merger Effort

12/20. AT&T announced in a release on December 19 that "after a thorough review of options it has agreed with Deutsche Telekom AG to end its bid to acquire T-Mobile USA".

T-Mobile USA stated in a release that "AT&T and Deutsche Telekom (DT) have mutually decided to terminate their agreement for AT&T to acquire T-Mobile USA. This announcement effectively ends the acquisition process launched March 20."

AT&T and T-Mobile announced their merger plans on March 20, 2011. See, story titled "AT&T to Acquire T-Mobile USA" in TLJ Daily E-Mail Alert No. 2,205, March 21, 2011.

On August 31, the Department of Justice's (DOJ) Antitrust Division filed a complaint [25 pages in PDF] in the U.S. District Court (DC) against AT&T, T-Mobile USA and Deutsche Telekom that seeks an injunction against AT&T's acquisition of T-Mobile USA on the grounds that it would would substantially lessen competition in violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18. See, story titled "DOJ Files Complaint to Block AT&T Acquisition of T-Mobile USA" in TLJ Daily E-Mail Alert No. 2,298, August 31, 2011.

The Federal Communications Commission (FCC) has not issued a final order denying applications associated with the proposed merger. However, it has taken actions directed at obstructing the merger. See, stories titled "Genachowski Proposes That FCC Designate AT&T T-Mobile Merger for Administrative Hearing" in TLJ Daily E-Mail Alert No. 2,313, November 22, 2001, and "FCC Staff Releases Items in AT&T T-Mobile Merger Proceeding" in TLJ Daily E-Mail Alert No. 2,315, November 29, 2011. This FCC's proceeding is WT Docket No. 11-65.

See, full story.

FSF Paper Criticizes FCC Handling of AT&T T-Mobile Merger

12/20. The Free State Foundation (FSF) released a paper on December 20 by Randy May and Seth Cooper titled "The FCC Staff's Report Against the AT&T/T-Mobile Merger: A Critical Analysis".

They wrote that "The FCC's release of its staff's analysis and findings regarding the AT&T/T-Mobile merger has raised some questions about administrative and procedural impropriety. Of equal concern, however, are the substantive problems besetting the FCC's staff report and what these problems say about the staff's mindset concerning competitive analysis."

The FSF authors wrote that "The staff report employs a static analysis ill-suited to today's dynamic wireless marketplace. Unfortunately, the staff puts primacy on market concentration indicators such as existing market share and spectrum holdings, all the while seemingly oblivious -- seemingly deliberately oblivious -- to market conditions and factors that might detract from its conclusions.

They added that "the staff report is a one-sided document. The report outright dismisses or significantly discounts every conceivable public benefit from AT&T/T-Mobile. And it readily and uncritically accepts nearly every alleged potential harm from the merger. As a result, the report appears almost completely devoid of even-handedness in its analysis and application of the FCC's public interest standard."

Continuation of SOPA Mark Up Postponed

12/20. The House Judiciary Committee (HJC) postponed the continuation of the mark up of HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA". The HJC began its mark up of this bill on Thursday, December 15, and continued on Friday, December 16, 2011.

Rep. Lamar Smith (R-TX), the sponsor of HR 3261, and Chairman of the HJC, scheduled the bill for continued mark up on Wednesday, December 21, at 9:00 AM. However, late on Tuesday, December 20, he postponed this continuation "due to House schedule".

The HJC is considering an amendment in the nature of a substitute, which is also sometimes referred to as the manager's amendment. See also:

Senate to Consider Its Rogue Web Sites in January

12/19. The full Senate is scheduled to begin consideration of S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" or "PROTECT IP Act", on January 23, 2012.

This bill is related to HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA", which is currently under consideration by the House Judiciary Committee (HJC).

Sen. Patrick Leahy (D-VT) and others introduced S 968 on May 12, 2011. The Senate Judiciary Committee (SJC) amended and approved this bill on May 26, 2011.

Sen. Leahy stated in a release that "I am pleased the Majority Leader has filed a motion to proceed to the PROTECT IP Act. The costs of online infringement are American jobs, harm to America's economy, and very real threats to consumers’ safety. The answer cannot simply be to do nothing. The Internet is a vibrant and free marketplace; it cannot be lawless."

He added that "Few issues before Congress today are as well supported on both sides of the political aisle as the PROTECT IP Act, and boast the broad support that this legislation has received."

Sen. Leahy and others also introduced a predecessor bill late in the 111th Congress, S 3804 [LOC | WW], the "Combating Online Infringement and Counterfeits Act", or "COICA". See, stories titled "Senators Introduce Bill to Enable DOJ to Shut Down Web Sites Dedicated to Infringement", "Bill Summary: Combating Online Infringement and Counterfeits Act", and "Commentary: Combating Online Infringement and Counterfeits Act" in TLJ Daily E-Mail Alert No. 2,132, September 21, 2010.

Senators Kohl and Lee Urge FTC to Conduct Antitrust Investigation of Google

12/19. Sen. Herb Kohl (D-WI) and Sen. Mike Lee (R-UT), the Chairman and ranking Republican on the Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights, sent a letter to Jonathan Leibowitz, Chairman of the Federal Trade Commission (FTC), urging the FTC to conduct a "thorough investigation" of whether Google's actions violate US antitrust law or substantially harm consumers or competition in online search. See, full story.

People and Appointments

12/19. Henning Schulzrinne was named "Chief Technology Officer" at the Federal Communications Commission (FCC). The FCC stated in a release that he "will guide the FCC's work on technology and engineering issues, together with the FCC’s Office of Engineering and Technology". He was worked at the FCC since 2010. Before that he was a professor at Columbia University.

Spectrum Legislation Update

12/17. A version of the House Commerce Committee's (HCC) spectrum bill, the "Jumpstarting Opportunity with Broadband Spectrum (JOBS) Act of 2011" was added as Title IV to HR 3630 [LOC | WW], which the House passed on Tuesday, December 13, 2011. However, these spectrum provisions were not included in the Senate version of the bill, passed on Saturday, December 17.

HR 3630 is a huge and broad year end bill that addresses numerous issues, including payroll taxes, and unemployment benefits.

Sen. John Rockefeller (D-WV) stated in a release on December 17 that "I'm deeply disappointed that measures to create a first responder communications network were not included in the larger year-end package".

Sen. John RockefellerSen. Rockefeller (at right) continued that "Our police officers, firefighters, and emergency personnel across America need to be able to rely on a nationwide, interoperable communications network when the unimaginable happens. Although we didn’t get this done within today's agreement, I intend to push hard in the coming weeks to work out a suitable compromise with the House. Build out of a public safety communications network is in our national interest. We cannot afford further inaction."

This HCC bill would, among other things, give the Federal Communications Commission (FCC) voluntary auction authority, and provide for broadcasters relocation expenses out of auction proceeds. It would also provide for allocation of the 20 MHz of contiguous spectrum known as the D Block for a public safety network, funding for that network, and a governance model.

House Judiciary Committee Continues Mark Up of SOPA

12/16. The House Judiciary Committee (HJC) continued its mark up of HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA", on Friday, December 16. Continuation of the mark up is scheduled for Wednesday, December 21, 2011.

The HJC is considering an amendment in the nature of a substitute [71 pages in PDF], which is also known as the manager's amendment, and amendments thereto. See also, HTML copy.

The HJC resumed its mark up at 10:00 AM. However, with numerous floor votes, Rep. Lamar Smith (R-TX), the sponsor of the bill and Chairman of the HJC, adjourned the mark up Friday afternoon after a total of about two hours of consideration.

Rep. Lamar SmithRep. Smith (at right) stated at that time that the mark is adjourned, and that the HJC will "reconvene at the earliest practical day that Congress is in session". He added that the mark up will adjourn "until members are notified that the mark up will resume". He spoke only briefly to reporters as he departed for floor votes.

On Monday, December 19, the HJC added a notice in its web site that the mark up will resume at 9:00 AM on Wednesday, December 21.

Sherwin Siy of the Public Knowledge (PK), which opposes this bill, stated in a release that "Continuing a markup on December 21, when many members may well be absent, demonstrates a clear desire to continue dodging the questions raised by experts, members, and the public. This unwillingness to take expert evidence, listen to constituents, or conduct due diligence in investigating the extraordinary harms risked by SOPA shows a process divorced from representation, responsibility, and reality."

Most of the amendments being considered are offered by opponents. However, the HJC debated a some length on December 16 a technical amendment offered by Rep. Bob Goodlatte (R-VA) that pertains to the bill's Domain Name System blocking scheme. DNS blocking is one of the aspects of the bill which opponents of the bill criticize with the most vehemence.

The HJC rejected on a vote of 8-20 an amendment offered by Rep. James Sensenbrenner (R-WI) that would have removed the private right of action provisions of the bill. He attempted to stir up the traditional animosity that many members have for private rights of action, abusive and meritless lawsuits, and the plaintiffs' bar.

This bill contains a limited private right of action for intellectual property rights holders. Private rights of actions is how holders of property rights enforce their property rights. The animosity for lawsuits is directed largely at tort litigation. Hence, this amendment only garnered the votes of eight members, and followed the voting trends disclosed by the other roll call votes at this mark up.

Rep. Chaffetz offered, promised to withdraw, but debated at length, an amendment that would have required a Government Accountability Office (GAO) study on the cyber security implications of this bill.

Committee Filibuster. Rep. Jared Polis (D-CO) and the other leading opponents of the bill repeated their statements that they are not offering and debating amendments for the purpose of delay. Rep. Smith repeated his statements that he accepts that the opponents are acting in good faith.

However, the actions of the opponents bear many attributes of a filibuster. Rep. Smith is allowing an unlimited number of amendments to be offered. Opponents have produced a huge supply of pending amendments. Opponents have offered, and are prepared to offer, amendments that contain redundant content. They are also advancing the same rhetorical arguments in repetition.

Rep. Smith is allowing any member to speak for five minutes on any amendment. The leading opponents are availing themselves of this opportunity, and often asking for additional time, which Rep. Smith is granting.

Opponents are also demanding that time consuming roll call votes be held on many of their amendments, even though the outcome of these votes is not in doubt.

Also, on Thursday, December 15, opponents engaged in dilatory tactics rarely invoked in the House Judiciary Committee, such as demanding a full reading of the amendment in the nature of a substitute.

In addition, opponents have repeatedly argued for another public hearing, and a closed briefing on cyber security from the Department of Homeland Security (DHS). Granting these requests could result in further delay.

The HJC has already spent over twelve hours in public mark up session. Yet, it is far from completing its consideration of amendments. The ongoing and seemingly limitless debate may have the affect of preventing the HJC from completing its mark up before members leave for the Christmas and New Year's break. Mark up might not resume until late January.

Also, 2012 is an election year for the entire House of Representatives, one third of the Senate, and the Presidency. While control of the House is not generally perceived to be at stake, control of the Senate and the Presidency may switch. Opponents of this bill might be acting with a cognizance of the general tendencies that it is harder to move controversial legislation closer to election day, and in critical election years.

People and Appointments

12/16. James Kennedy was designated Director of the U.S. International Trade Commission's (USITC) Office Analysis and Research Services. See, USITC release.

Go to News from December 11-15, 2011.