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Legislative History (COICA, PIPA and SOPA)
is opposed by some public interest groups who believed the definitions set forth in COICA and
PROTECT IP Act are too vague), SOPA targets sites “dedicated to the theft of U.S. property.” A site
is considered dedicated to the theft of U.S. property if it is a U.S.-directed site: (a) that is “primarily
designed” to engage in, enable or facilitate criminal intellectual property violations; or, (b) whose
operator “is taking, or has taken, deliberate actions to avoid confirming a high probability of the
use of the U.S.-directed site to carry out” copyright violations or whose operator operates the site to
promote or carry out such violations.
SOPA places special emphasis on targeting foreign infringing sites, defined as U.S.-directed sites
with U.S. users whose off-shore based operator commits or facilitates the commission of infringements
of U.S. copyrights. Section 102 of SOPA empowers the AG with the authority to request a
court order against any such foreign infringing site, which would block the infringing site’s access
to the U.S. market. Service providers and search engines would be required to take “technically
feasible” measures to block access to the foreign infringing site, and payment processors and
online advertising services may be required to cease providing services to such sites. The bill also
allows the Justice Department to target previously seized rogue sites, which reappear under
different domain names, simplifying the process of ensuring that such rogue sites are completely
shut down.
The bill also amends various sections of the United States Code to enhance criminal penalties and
protections relating to copyright infringement and trafficking in counterfeit goods. In addition, the
bill adds criminal penalties for felony infringements of the public performance right, similar to the
penalties in place for infringements of the reproduction and distribution rights.
2. Savings and Severability Clauses
SOPA includes new savings clauses designed to confirm that this bill does not expand or diminish
rights or liabilities already provided under the First Amendment or under Title 17 of the U.S. Code
(relating to copyrights). No such savings clause relating to trademark rights and/or liabilities
appears in this bill.
This section also contains a severability clause (Section 2(b)), providing that if any provision of
this bill or its application is held to be unconstitutional, the remaining “provisions or applications
of the provision to other persons or circumstances shall not be affected thereby.”
The Manager’s Amendment offered 26 on December 15, 2011 adds three additional savings clauses:
1) confirms that Title I shall not be construed to impose a duty to monitor by ISPs; 2) confirms that
Title I shall not be construed to impose a duty on ISPs to design network, technology or service to
prevent violations of this bill or to use a specific technology; and 3) confirms that Title I shall not
be construed to authorize a court to require any action by the ISP that would “impair the security or
integrity of the domain name system.”
3. Future Studies
Section 106 prescribes the undertaking of two studies: The first must be undertaken by the Register
of Copyrights about the enforcement and effectiveness of this title, and any need for amendments
to adapt to emerging technologies. This report must be submitted to Congress within two years of
the enactment of the bill.
The second study shall be performed by the Secretary of Commerce within one year of enactment
to report on the effectiveness of this bill on the accessibility of “Internet sites dedicated to infringing
activity” and the deployment, security and reliability of the domain name system and associated
processes such as DNS Security Extensions. This study must also make any recommendations
for modifications to this bill.
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