SOPA on the ropes? Bipartisan alternative to ‘Net censorship emerges

The Senate's PROTECT IP Act and the House's Stop Online Piracy Act (SOPA) are so noxious that even the Business Software Alliance has serious reservations, and SOPA's main backer had to take to the virtual pages of National Review today to quell a growing revolt among his conservative colleagues about "regulating the Internet." Whatever you think of the legislation, it unquestionably represents a sea change in the US approach to the Internet, one which explicitly contemplates widespread website blocking and search engine de-listing.

The level of debate on an issue this important has been... suboptimal. (And hearings have been rather lopsided affairs). Just listen to the rhetoric of SOPA author Lamar Smith: "Enforcing the law against criminals is not censorship." Pithy, sure, but it doesn't relate to any actual objections put forth by thoughtful critics.

But rightsholders do need some means of enforcing copyrights and trademarks, something tough to do when a site sets up overseas and willfully targets American consumers with fake goods and unauthorized content. Some sites can be leaned on when hosted in friendly countries, but many simply thumb their nose at US law with impunity. If you can't go after the sites at the source, and you can't lure their operators to the US (both tactics used with success in other cases), what's left but blocking site access from within the US?

Fortunately, plenty can be done, and it can be done in a way that doesn't raise the same immediate concerns about due process and censorship. One promising alternative was unveiled today by a bipartisan group of 10 senators and representatives. It ditches the “law and order” approach to piracy and replaces it with a more limited, trade-based system. 

And the legislators behind it have put out a draft of the idea for public comment before they even begin drawing up actual legislation. (Does the Smoky Back Room industry know about this threatening behavior?)

Less cops and robbers, more trade policy

Here's the plan, according to a draft seen by Ars Technica: online piracy from overseas sites will be taken away from the Attorney General and moved out of the courts. Instead, power will be vested in the International Trade Commission, which already handles IP disputes relating to imports (the ITC is heavily involved in the recent patent wars around smartphones, for instance).

The government won't bring cases, either; rightsholders can petition the ITC for a "cease and desist" order, but only when the site in question is foreign and is "primarily" and "willfully" violating US law. Sites would be notified and would have a right to be heard before decisions are made in most cases, and rulings could be appealed to a US court if desired by either party. ("Urgent" requests could get preliminary and temporary letters based on a one-sided hearing, but the process also envisions "sanctions" for any company that tries to abuse the ITC process.)

Sites which are truly bent on counterfeiting and piracy are unlikely to pay much attention to a US-based cease and desist order, of course, so the new plan envisions two remedies. If such an order is issued, Internet advertising firms and financial providers would have to stop offering credit card payments and ads to the site in question. Website blocking by ISPs and DNS providers is not part of the plan, nor would search engines or others be required to remove links to such content.

The two-page draft of the plan is being issued so that "the public can provide us with feedback and counsel before the proposal is formally introduced in the House and the Senate." And clearly, feedback would be useful. Can such a "follow the money" plan do anything about noncommercial piracy, for instance? Should it try to do so? But the whole shift in tone marked by the new approach looks far more promising than anything likely to come out of the mess that is SOPA.

Who's behind all of this sweet sanity? Senators Wyden (D-OR), Cantwell (D-WA), Moran (R-KS), and Warner (D-VA); Reps. Chaffetz (R-UT), Campbell (R-CA), Doggett (D-TX), Eshoo (D-CA), Issa (R-CA), and Lofgren (D-CA).

Listing image by Photo illustration by Aurich Lawson