spreading jam

Whoa, Wikipedia’s gone dark today. Hey, Reddit’s not working.  What does this all mean?  Major Internet sites today are protesting two pending bills in the US Congress: SOPA (or the Stopping Online Piracy Act) in the House of Representatives, and PIPA (or Protecting Intellectual Property Act) in the Senate.  What do these two bills do, why do people object to them so much, and, most importantly, are they likely to become US law?

SOPA and PIPA are designed to address a major area of concern for the American entertainment industry – online piracy.  It’s no question that the pirating of television shows, movies, games, music, and other content is costing the industry millions of dollars a year.  While the numbers aren’t quite as high as the industry’s lobbying groups suggest (MPAA, the movie industry’s lobbying group, estimates the figures are more than $20 billion, but outside observers think it’s more like $400 million), and are dwarfed by profits as a whole, that’s still money that could go to hire more talent, more technical teams, and more writers, rather than just disappearing into the ether.

So it’s not an unfounded concern.  But the trouble with this kind of legislation is that it’s like trying to kill a fly with a log; you might achieve the intended aim, but you’ll end up taking out a lot of other stuff as well.  The way the bills are currently written, it could, through zealous enforcement, mean that any site that hosts any kind of copyrighted material in any way could be subject to action from the US Justice Department and shut down.  For the burgeoning digital industry, which is almost as large an economic driver of the US economy as the entertainment industry, this could amount to economic strangulation; if your site is shut down mistakenly, you could end up being offline for days.  If you’re a small entrepreneur, this could destroy your business; if you’re a Google, that’s millions (possibly billions) of dollars lost.  Not good.

Representatives Zoe Lofgren (D-CA) and Dan Lungren (D-CA) have expressed their concerns that Congress hasn’t had input from technical experts on what SOPA and PIPA mean for the structure of the Internet.  But Representatives Bob Goodlatte (R-VA), John Conyers (D-MI), and Howard Berman (D-CA), say that the Digital Millenium Copyright Act, which currently covers piracy and copyright issues, doesn’t go far enough to protect the industry from losing money every day, which is why action needs to happen now.

Rep. Berman’s district covers Hollywood, and members of the content industry are among his most lucrative campaign donors.   Part of the reason that there is so much urgency about getting these bills pushed through now is, quite simply, the entertainment industry is lobbying Congress to do it.  Public Knowledge, a digital freedom think tank in Washington, DC, claims lobbying groups have spent $94 million on getting SOPA and PIPA passed; in the last election, the entertainment industry donated over $110m to various candidates.  In Washington, lobbying money and campaign donations talk; if Congresscritters’ donors want them to do a certain thing, that thing tends to get done.  The head of MPAA is former Senator Chris Dodd, a Democrat from Connecticut – he’s a former Banking chairman who was known for his ability to raise prodigious campaign funds from the industry he oversaw.  As of August 2011, the group spent 1.2 million dollars on lobbying politicians.

So there’s a fair amount of financial pressure on Congress to get these bills passed.  But there’s also a huge amount of public outcry.  What will win out in the end?  In the House of Representatives, House Oversight Chairman Darrell Issa (R-CA) has said that Majority Leader Eric Cantor has assured him that SOPA will not proceed without “consensus”; which likely means that in its current form, SOPA is unlikely to get to the House floor for a vote.  Rep. Lamar Smith (R-TX), the bill’s sponsor, says that “markup” of the bill (the process by which the House debates, amends, and writes legislation) will continue in February, but almost certainly not the way it’s currently written, and certainly not without more technical testimony about the Internet’s structure.  An election is coming in November, and the absolute last thing Eric Cantor wants is a huge bipartisan public outcry against Congress when the electorate is in the mood to throw all the bums out.

It’s a different story in the Senate, however.  Legislation can arise from either the House or the Senate, and when there is a large or important issue before Congress, bills can be written in both houses.  That’s why there are two different versions of this legislation, with minor variations.  Before the bill goes to President Obama to sign (or not), those differences will be resolved in a conference committee.  But because the rules of the Senate are rather different from those of the House, PIPA stands a much better chance of at least making it through the Senate in its current form than SOPA does through the House.

The legislative calendar for the Senate begins on 23 January, and Majority Leader Harry Reid has indicated that he will begin the process of moving PIPA towards a floor vote.  Because the Senate is Congress’ upper, more deliberative chamber, debate on any bill will continue until the members vote for cloture, which will mean that there will be a 30 hour time limit on debate subject to the members agreeing that debate should end.  Cloture must be achieved by 3/5ths of the Senate voting for it, or 60 members.  Last year, Sen. Ron Wyden (D-OR) put a hold on this bill, signalling that he would lead a filibuster on it, which means he would stall the bill by endless debate.  There will, therefore, be a contentious effort to avoid cloture on the bill, keeping debate open, in theory, forever.

If cloture is not achieved on PIPA, instead of debating it endlessly, it’s likely that Sen. Reid will withdraw the bill, leaving it to either be open to negotiation, or to wither away and die.  PIPA’s sponsor, Sen. Pat Leahy (D-VT), says he will consider adding amendments to the bill to protect internet service providers, but if cloture is achieved, then the bill as it stands could very well move forward to a up-or-down vote in the Senate.  It will then go to the House.

There are currently 40 co-sponsors of PIPA in the Senate, who presumably will vote to invoke cloture.  You can find out who they are here. PIPA proponents will be looking, between now and when the Senate reconvenes on 23 January, for 20 more Senators to join them to invoke cloture.  If this issue is something you care about, you might want to contact a friend who lives in the United States, particularly one who is represented by a Senator not on the co-sponsor list, and urge your friend to get in touch with his or her Senator to express views on this matter.  Senators do really listen to their constituents, and public opinion may be able to sway Senators one way or the other.  It’s important to be educated on the issue but also to speak to your Congressional representatives in a way they understand.  Don’t get hysterical; know the facts, and more importantly, know who to get in touch with.  That’s how we can change policy.