I, for one, hope not. While we in the intellectual property law community may differ as to the best method to combat foreign online counterfeiting and piracy, the basic fact is that this type of theft is not currently enforceable using existing U.S. law. The conduct itself is illegal under the Lanham Act (15 U.S.C. § 1116(d)) and the Copyright Act (17 U.S.C. §§ 501, 512, 1201), and rights holders today can enforce these rights against U.S. based infringers. However, obtaining jurisdiction over a foreign entity is the challenge that bills like SOPA, PROTECT IP and OPEN are aiming to address.
In light of the online protests – in the form of site blackouts – that occurred on January 18, 2012, both the Senate and the House have tabled their bills pending additional communications with the technology community to find solutions that the community can support. (Note that the OPEN Act is proceeding under a different format – and appears to be continuing on its path to a vote.)
PROTECT IP Act – Current Status
The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 ("The PROTECT IP Act") (S. 968) had been scheduled for cloture (see prior post explaining process) on January 24, 2012. Sen. Harry Reid has confirmed that the vote has been postponed. A new date has not yet been set.
In announcing the postponement, Sen. Reid made the following statement (emphasis added):
"In light of recent events, I have decided to postpone Tuesday's vote on the PROTECT I.P. Act.
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.
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." (Jan. 20, 2012)
Sen. Leahy issued several public statements just before – and in the wake of – the Jan. 18 protests:
- Dec. 17: Comment of Senator Patrick Leahy on Senate Consideration of the PROTECT IP Act
- Jan. 12: Comment of Senator Patrick Leahy on Internet Service Providers and the PROTECT IP Act
- Jan. 13: Leahy: Senate Should Debate How To Fight Online Infringement
- Jan. 17: Comment of Senator Patrick Leahy on the PROTECT IP Act
- Jan. 18: The PROTECT IP Act: Targeting Websites DEDICATED to Infringement
- Jan. 19 (not exactly on the PROTECT IP Act, but related): Comment of Senator Patrick Leahy on DOJ's Action Against MegaUpload.com and Online Infringement
- Jan. 20: Comment of Senator Patrick Leahy on Postponement of The Vote on Cloture on the Motion to Proceed to the PROTECT IP Act
- Jan. 23: Leahy: Senate Should Focus On Stopping Online Theft That Undercuts Economic Recovery, and in particular said:"Rogue websites, primarily based overseas, are stealing American property, harming American consumers, hurting the American economic recovery and costing us American jobs. Stealing and counterfeiting are wrong. They are harmful. The Institute for Policy Innovation estimates that copyright infringement alone costs more than $50 billion a year, and the sale of counterfeits online is estimated to be several times more costly. The AFL-CIO estimates that hundreds of thousands of jobs are lost to these forms of theft.And this is not just an economic and jobs problem for Americans. This is a consumer safety issue. According to a study released earlier this year, a couple dozen websites selling counterfeit prescription drugs had more than 141,000 visits per day, on average. Counterfeit medication, brake linings and other products threaten Americans' safety. These are serious concerns. These are the concerns I have kept in mind over the last several years as I have worked with Senators on both sides of the aisle to help resolve these serious problems."* * *"At the end of the day, this debate boils down to a simple question. Should Americans and American companies profit from what they produce and be able to provide American jobs, or do we want to continue to let thieves operating overseas steal that property and sell it to unsuspecting American consumers? I hope that in the coming days the Senate will focus on stopping that theft that is undercutting our economic recovery. I remain committed to confronting this problem."
The Stop Online Piracy Act ("SOPA") (H.R. 3261) was the bill most clearly targeted by media coverage and the Internet blackouts in the last few days. The bill is currently on hold, and no hearings are currently scheduled to finish the markup process, in which a Manager's Amendment had been proposed, followed by several amendments to it. The amendments would have modified the Manager's Amendment, which would then be introduced formally as a new version of SOPA.
Rep. Lamar Smith, Chairman of the Judiciary Committee, similarly issued several press releases on SOPA recently that explain further the progress of this bill through the Committee:
- Dec. 15: SOPA Has Strong Support
- Dec. 16: Markup Shows Strong Support for SOPA
- Jan. 13: Smith to Remove DNS Blocking from SOPA
- Jan. 14: SOPA Meets White House Requirements
- Jan. 17: Stop Online Piracy Act Markup to Resume in February
- Jan. 19: OPEN Act Increases Bureaucracy, Won't Stop IP Theft
- Jan. 20: Statement from Chairman Smith on Senate Delay of Vote on PROTECT IP Act, in which he said:"The problem of online piracy is too big to ignore. American intellectual property industries provide 19 million high-paying jobs and account for more than 60 percent of U.S. exports. The theft of America's intellectual property costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs. Congress cannot stand by and do nothing while American innovators and job creators are under attack.The online theft of American intellectual property is no different than the theft of products from a store. It is illegal and the law should be enforced both in the store and online.The Committee 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.The House Judiciary Committee will postpone consideration of the legislation until there is wider agreement on a solution."
OPEN Act – Current Status
The Online Protection and Enforcement of Digital Trade Act ("the OPEN Act") was introduced in the Senate by Senator Wyden on December 17, 2011 as S. 2029. A nearly identical version (with minor changes) was introduced by Rep. Issa in the House on January 18, 2011 as H.R. 3782. At present, the bills have been referred to committees for further consideration. The House bill has been "[r]eferred to the Committee on Ways and Means, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned." Status Report for H.R. 3782.
Most recently, Sen. Wyden made the following public statements:
- Jan. 12: Wyden Statement on Potential Modifications to Protect IP Act
- Jan. 13: Wyden Statement on the Letter to Senator Reid Calling for More Time to Consider PIPA and Dropping of DNS Provision in SOPA
- Jan. 20: Wyden and Moran Respond to the Postponing of Protect IP Vote in the Senate
- Jan. 18: Issa Introduces the OPEN Act
- Jan. 18: #SOPA & #PIPA Website Blackouts, including the following notation:"The Oversight Committee had originally scheduled a hearing on DNS blocking for today. The hearing was postponed after assurances from Leader Cantor and the removal of DNS blocking provisions from SOPA were made. Even with this alteration, Chairman Issa continues to oppose SOPA as well as PIPA."
- Jan. 20: Retreat of Protect IP Act (PIPA) and Stop Online Piracy Act (SOPA)
It appears, therefore, that the debate about the right mechanism to combat foreign online piracy and counterfeiting is not completely off the table, although it is hard to imagine the PROTECT IP Act or SOPA proceeding unaltered. Any debate on the issue – regardless of what bill is associated with the debate – will raise questions of effectiveness of the solution, ability to enforce the bill, if enacted, against foreign entities, and whether there is unintended harm that must be avoided. At base, however, this is a problem that warrants a legislative solution.