SOPA slips away

Legislation You knew something was up when both Lamar Smith and Patrick Leahy, respectively the chairmen of the House and Senate Judiciary Committees, each issued statements Friday (Smith, Leahy) saying they would remove the DNS blocking provisions from their own signature anti-piracy bills, the Stop Online Piracy Act in the House, and PROTECT-IP in the Senate. On Saturday, the rest of us found out what was up when the Obama Administration posted a statement on the White House blog saying it would not support any legislative measures “that tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS).”

And with that, the copyright industries’ biggest prize was lost.

The last-minute reversals are a triumph not just for the professional engineers who had raised the alarm about the dangers of tampering with the universal DNS protocol, but for the grassroots activists who raised the fuss that got the politicians’ attention. The Administration’s statement, after all, came in response to a public petition posted on the White House blog and promoted on Reddit and other social media platforms.

They are also a major blow to MPAA head Chris Dodd, a former Democratic U.S. Senator who was hired in large part to get some serious anti-piracy action out of Capitol Hill and the Obama Administration. No doubt Dodd was behind the strategy to ram SOPA and PROTECT-IP through Congress quickly, with as little debate as possible and before anyone had time to organize opposition — a strategy that is now in tatters.

As for what happens now, don’t expect the issue — or the legislation — to go away entirely. Both Leahy (D-VE) and Smith (R-TX) made it clear they intend to forget ahead with their bills, now shorn of their DNS provisions. Leahy said he was preparing a “manager’s amendment” to PROTECT-IP, “to be considered during the floor debate,” in which he will propose that “the positive and negative effects of this [DNS] provision be studied before implemented” [sic], so that the Senate can “focus on the other important provisions in this bill.” Floor debate on PROTECT-IP is tentatively scheduled for Jan. 24.

Smith is also preparing a “manager’s amendment” (his second) to try to salvage SOPA, although the Republican leadership in the House has apparently decided to hold off bringing anything to the floor until a broader consensus is reached.

The White House statement made it pretty clear that the Administration remains open to stepped-up anti-piracy enforcement legislation so long as it doesn’t involve DNS blocking. Even without that provision, however, SOPA and PROTECT-IP could be problematic for a lot of Internet intermediaries, and could still raise free-speech issues. The bills still contain provisions requiring payment processors, social networks and others to cut off web sites that “engage in or facilitate” piracy, a potentially very broad category that could sweep up many legitimate sites with de minimus infringing material along with the rogues. They also effectively would impress payment processors into the service of copyright enforcement, a duty for which they are ill-suited and unprepared.

Moreover, Smith and Leahy have been embarrassed, and they will both be gunning for a pelt to put on their wall. Expect the battle to continue.