EFF Heralds Victory After Senate Shelves IP Bill

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The Electronic Frontier Foundation (EFF), a prominent digital-rights group, is hailing the Senate Judiciary Committee’s decision to delay consideration of a controversial bill that would give law enforcement new authorities to combat Internet piracy.

The Combating Online Infringement and Counterfeits Act would create a legal avenue for the Justice Department to take action against websites set up primarily to traffic in pirated goods and content, including a provision for obtaining a court order requiring domain registries to shut down offending sites.

But the EFF and other organizations had warned that the bill’s language was excessively broad, raising the concern that Internet blacklists would inevitably take down lawful content in the name of industry-backed piracy protections, which the groups argue raises a serious censorship issue.

The Judiciary Committee had planned to consider the bill at a markup hearing on Thursday, but cancelled the proceeding, delaying any movement on the legislation until after the midterm elections.

“This is a real victory,” Tim Jones, EFF’s activism and technology manager, wrote in a blog post. “The entertainment industry and their allies in Congress had hoped this bill would be quickly approved by the Senate Judiciary Committee with no debate before the senators went home for the October recess.”

The bill, introduced just last week by Judiciary Chairman Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah), did appear to be on the fast track. But Leahy spokeswoman Erica Chabot disputed the charge that the committee is rushing to advance the legislation, noting a June hearing on intellectual property enforcement as the latest in a string of proceedings on the issue.

“There is a record about what kind of problems this kind of online infringement and copyright cause, and the committee took great pains to make sure they heard from stakeholders,” Chabot told InternetNews.com.

The bill garnered widespread bipartisan support among members of the Judiciary
Committee, and now counts 16 cosponsors in addition to Leahy. The legislation also won tacit praise from White House Intellectual Property Enforcement Coordinator Victoria Espinel, who earlier this week lauded the bipartisan efforts of the committee leadership, though she stopped short of offering an official administration endorsement.

But the bill has roused concerns beyond the digital-rights advocacy community, with many industry members worrying about provisions that could allow law enforcement to lean on Internet service providers, advertisers and payment processors to withhold access or services to blacklisted sites.

Earlier this week, industry organizations such as the Consumer Electronics Association and the Computer and Communications Industry Association teamed with advocacy groups including EFF in a joint letter (available in PDF format) to Leahy and Jeff Sessions, the ranking Republican on the committee, protesting the bill for the “numerous legal, political, and technical issues” it raised without resolving.

Also this week, a group of 87 prominent Internet engineers wrote to the committee warning about the international provisions of the bill and the fear that it would mobilize a dragnet that would blacklist “an incredible range of useful, law-abiding sites.”

In partial response to those concerns, the committee introduced a substitute amendment (PDF available here this week, which would provide a broader shield against legal liability for ISPs and registrars, and scrap the provision authorizing the Justice Department to publish a list of infringing domains.

A Senate staffer noted that the Thursday markup hearing was canceled owing to the early adjournment for the midterm campaigns, and that the bill will be very much in play when members return. But at this point, any number of variables could sway the legislative agenda in the lame-duck session following the elections.

“No firm dates are set for when the next markup of the committee will be,” the staffer told InternetNews.com.

Chabot would only say that Leahy is “committed to this legislation,” but noted the uncertainty of the Senate calendar for the remainder of the session.

EFF’s Jones acknowledged that the cancellation of this week’s markup hearing is only a modest victory in the campaign to marshal opposition to the bill, and called on the group’s supporters to make their voices heard.

“Make no mistake,” he said, “this bill will be back soon enough, and Congress will again need to hear from concerned citizens like you.”

Kenneth Corbin is an associate editor at InternetNews.com, the news service of Internet.com, the network for technology professionals.