SOPA-PIPA-OPEN: Where are we now?

EDUCAUSE has been blogging about PIPA and SOPA and their impacts on campus networks if either were enacted.  See blog posts May 25^th, July 8^th, July 15^th, October 28^th, November 15^th, December 1st for background information.  EDUCAUSE is also following the new OPEN Act that was released yesterday.

Here is a summary of where each bill stands as of today:

PROTECT IP (PIPA) (S. 968)

• PIPA was already marked up in July and passed the Senate Judiciary Committee 19-0.
• Sen. Wyden (OR-D) placed a hold on the Senate Protect IP bill earlier this year. That hold could be defeated through a cloture vote with a supermajority of 60 senators, which is a significant, but not insurmountable, hurdle for the legislation's backers.

SOPA (H.R. 3261)

• SOPA is broader than the Protect IP Act.  It says a network provider can be ordered to "prevent access by its subscribers located within the United States" to a targeted web site. The Justice Department could obtain an order to be served on search engines, Domain Name System (DNS) companies, and Internet providers requiring them to take steps to prevent their customers from visiting the targeted site.  That includes blocking by IP address and possibly deep packet inspection.
• Mark-up of SOPA is scheduled for next week – either December 14^th or 15^th, as of this writing.

OPEN Act

• Senators and Congressmen from both parties have joined together in proposing this bill, which they have made available via a website to solicit comment and collaboration before formally introducing it.
• The OPEN Act takes a radically different approach by authorizing the International Trade Commission (ITC) to issue cease-and-desist orders against foreign websites deemed rogue or dedicated to copyright infringement. 
• The OPEN Act would target only payment processors, online advertising networks, and other sources of revenue for rogue sites.  This "follow the money" approach has been advocated by many of the opponents of SOPA. 
• Website filtering and blocking by ISPs and DNS providers is not part of the plan, nor would search engines be required to remove links to such content.
• The OPEN draft bill therefore avoids the serious pitfalls of SOPA and PIPA, the legislation being aggressively pushed by rights holders.  In particular, it doesn’t put at risk every general-purpose service with social networking or cloud-based storage functions.  It also doesn’t make the mistake of directing ISPs to tamper with the Internet’s addressing system that risks undermining cybersecurity, privacy, and the U.S. foreign policy aim of a single, global, open Internet, as noted by the Center for Technology and Democracy (CDT).
• There is plenty of evidence, though, that a “follow the money” approach (which is part of PIPA language) offers the most meaningful difference in the fight against online piracy.  Computer scientists analyzing spam found that credit card payment systems offer a viable chokepoint for controlling spam; cutting off the shady financial companies that spammers rely on could succeed where technical filtering/blocking efforts have failed.
• OPEN is out there for comment, and suggestions are coming in.

Points of view vary on all of these bills:

• CDT has compiled two resource pages to keep a running tally of mounting opposition to SOPA and PIPA. The first page features letters to Congress, articles, Op-Eds, blog posts, and analyses against the bills. The second lists the organizations, academics, and experts who have publicly opposed or expressed concern with SOPA and PIPA. Both are being updated on a daily basis.
• Internet Society has issued a statement expressing DNS concerns about both SOPA and PIPA.
• Creative Commons, MIT’s OpenCourseware Project, the Internet Archive, and a coalition of professors and educators have sent a letter to the House Judiciary Committee.
• SOPA's and PIPA’s backers, including the Motion Picture Association of America and the Recording Industry Association of America, have made it clear that they believe a web-blocking approach--which both SOPA and Protect IP envision--is necessary.

Much has been written about each of these bills.  Jonathan Zittrain, a Harvard law professor and co-founder of its Berkman Center for Internet and Society, has written thoughtfully on the larger policy issue that each of these bills present.  “The question Congress ideally would take up before passing anything is an empirical one, because overseas copyright infringement is a classic example of a public policy issue that hungers for real data.  We’d do well to have less unanchored rhetoric around this topic and more information about just what kinds of sites proponents want to target and what evidence they can produce to show the harm these sites are causing.  Then Congress could evaluate how risky or costly legislative action against those sorts of sites would prove.  This is an earnest plea — we really could benefit from good data here.” 

EDUCAUSE will continue to monitor and report on these bills.