Controversial legislation targeting foreign websites that offer pirated content or counterfeit goods faces increasingly long odds in the Senate ahead of a key vote on Tuesday.
A day after thousands of websites blacked out part or all of their sites to protest the Senate’s Protect IP Act and the House’s Stop Online Piracy Act, supporters of those measures were trying to regroup in advance of a Senate decision on whether to allow debate to begin on the measure. Supporters need 60 votes to allow the bill to come up. Sen. Ron Wyden, D-Ore., has been blocking Protect IP from moving since the Judiciary Committee approved it in May.
Whether they managed to effectively kill the bill remains to be seen, but opponents have raised serious doubts among many lawmakers who were contacted by millions of constituents concerned about its potential impact on free speech and innovation. Google, which is opposing the legislation along with other top tech firms such as Amazon, Facebook, and Yahoo, said on Thursday afternoon that 7 million users had signed its online petition opposing the bills in the House and Senate. Several lawmakers have dropped support for the bills, including some of the legislation’s cosponsors. Among those Senate cosponsors who have come out against Protect IP or voiced concerns are Sens. Kelly Ayotte, R-N.H.; Roy Blunt, R-Mo.; John Boozman, R-Ark.; Ben Cardin, D-Md.; Orrin Hatch, R-Utah; Marco Rubio, R-Fla.; Bob Menendez, D-N.J.; and David Vitter, R-La.
But opponents are wary of pronouncing victory too soon and worry that the bill’s sponsors will offer enough changes to make it appear as if they have addressed critics' concerns. “The majority leader is still set to bring it to the floor. It’s not dead at all,” Consumer Electronics Association Vice President of Government Affairs Michael Petricone said at a Capitol Hill briefing on Thursday.
NetCoalition Executive Director Markham Erickson added that Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., “is committed to this.… I think he would drop a ham sandwich into the process just to restart the momentum and get the bill to conference with the House.”
Leahy, Protect IP’s author, is working with Senate Minority Whip Jon Kyl, R-Ariz., a senior Judiciary Committee member, to try to find what a GOP aide called “common ground” that addresses concerns. Possible changes could include removing provisions that would require service providers to block U.S. access to infringing foreign websites and search engines to block search results for infringing sites. And Senate Majority Leader Harry Reid, D-Nev., is unlikely to pull the bill ahead of the Tuesday vote.
Judiciary and leadership aides believe a manager’s amendment addressing opponents' concerns is possible. The problem for backers is they are unlikely to have a chance to offer one. While Democrats like Cardin who have come out against the bill in its current form do not appear to have ruled out voting for cloture to start debate on the bill, former Republican cosponsors and other GOP senators have announced they will oppose cloture. Senate Minority Leader Mitch McConnell, R-Ky., on Thursday urged the Senate Democrats “to reconsider [their] decision to proceed to this bill.” McConnell’s opposition suggests Republicans will overwhelmingly or uniformly oppose cloture, ensuring its defeat. Democratic leadership aides said strong GOP opposition will leave many Democrats unwilling to vote for what is no longer a bipartisan measure.
The aides did not rule out Reid pulling the bill from the floor before Tuesday’s vote, but said he still plans to hold the vote because Senate backers want to demonstrate to industry supporters how badly defeated the measure will be.
Industry supporters are working to refocus lawmakers’ attention on why the bill is needed. “We have to switch the discussion from gimmicks and sideshows ... back to substance," Michael O’Leary, the Motion Picture Association of America’s senior executive vice president for global policy and external affairs, told National Journal. He said supporters of the two online piracy bills have been trying to work with senators on compromise language that they can support. “We’re trying to find a road forward. I believe we’ll get some traction in that space,” he said.
Some industry supporters of Protect IP and SOPA question whether critics like Google have put themselves in a position where they won’t be able to support any compromise. “Has Google unleashed such a beast that they have to oppose everything?” asked Recording Industry Association of America Senior Executive Vice President Mitch Glazier.
Critics are instead backing an alternative bill known as the OPEN Act, which was introduced on Wednesday in the House by Oversight and Government Reform Chairman Darrell Issa, R-Calif. The legislation, which is similar to a bill Wyden introduced last month, focuses on a follow-the-money approach and puts the International Trade Commission and not the Justice Department in charge.
But Glazier and others dismissed the OPEN Act as ineffective. “We would be worse off with the OPEN Act than we are today,” he said.