SOPA? E-PARASITE Act? Whatever It’s Called, Here’s A Primer on the Latest in Protect IP

[UPDATE: See also Stop Online Piracy Act: What Does SOPA Mean For Businesses?]

“The Protect IP Act is a proposed bill making its way through the Senate as S. 978 that aims to curb online counterfeiting, among other things… While the Protect IP Act’s stated goals are beyond dispute —to prevent the online sale of counterfeit goods —the means toward achieving those goals remains ripe for debate.” (From The Protect IP Act : A Powerful Tool, A Powerful Controversy by Venable LLP) 

On October 26, 2011, Representative Lamar Smith introduced the Stop Online Piracy Act (SOPA), the House’s version of the Senate’s Protect IP Act. 

This isn’t the first time anti-infringement legislation has been attempted in Congress. Writes Mathew Ingram at Gigaom:

“To recap a bit of history, the Stop Online Piracy Act or SOPA is the House version of a previous bill proposed by the Senate, which was known as the PROTECT-IP Act (a name that was an abbreviation for ‘Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property’). That in turn was a rewritten version of a previous proposed bill that was introduced in the Senate last year. Not wanting to be outdone by their Senate colleagues when it comes to really long acronyms, the House version is also known as the E-PARASITE Act, which is short for ‘Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation.’

Intended “to promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes,” the E-PARASITE bill has sparked significant debate after only one week, debate that will likely grow until the bill is either passed, rejected, or modified.

What’s in the bill?

That depends on who you ask. The bill’s intent is honorable: to protect IP holders from websites which serve no purpose other than to infringe on their intellectual property. 

But California Rep. Zoe Lofgren calls it the “end of the internet,” while the Screen Actors Guild hails it for protecting the online marketplace from rogue websites that threaten its vitality by “stealing the work of American innovators and undermining legitimate business.”  

Broadly speaking, the Act is designed to protect US copyright and intellectual property owners from rogue websites that steal their IP and distribute counterfeit goods. It would give the US Attorney General additional tools for blocking foreign websites that steal and sell American innovations and products. It would make it a felony to stream copyrighted works. It would increase criminal penalties for trafficking in counterfeit medicine. Critics say it would do a lot more:

  allow the Attorney General to create a blacklist of international sites that (it says) infringe IP rights, focusing ISPs to block all sites on the list or risk losing DMCA safe harbor protections

  allow the government to shut down websites containing a thousand pages even if only one page was determined to be “dedicated to theft of US property” 

  allow the Attorney General to force the companies that maintain DNS lookup tables to change those tables so as to block access to infringing sites

  It would require search engines, payment providers and advertising sites to cut off access to websites based solely upon the receipt of notice alleging the site is infringing IP rights

Who is behind the bill?

The E-PARASITE bill has broad bi-partisan support in Congress. In the House, four Representatives authored the bill, which was co-sponsored by another eight. In the Senate, the Protect IP Act (essentially taken over by the House bill) had the backing of up to 35 Senators, a full third of the chamber. 

Outside of Washington, the draft legislation has the support of a broad range of business leaders, the Screen Actors Guild and other unions, and state Attorneys General, as well as (not surprisingly) the Motion Picture Association of America, the Recording Industry Association of America, the US Chamber of Commerce and other industry groups.

On the other hand, a number of important groups are critical of the bill, including the Electronic Frontier Foundation, Public Knowledgetechnology industry groups, and tech entrepreneurs, VCs and journalists.

Why is the bill being criticized? 

Take your pick: 

  Because it would kill jobs in the ever-expanding tech industry

•  Because it would stifle innovation

  Because it effectively strips away all safe harbor provisions of the Digital Millennium Copyright Act, which protect online service providers against copyright liability if they block access to allegedly infringing material when notified of potential infringement 

  Because it would create a “Great Firewall of America” that blocks access to certain websites (almost certainly in violation of the First Amendment)

  Because it allows rightsholders to indiscriminately target websites without liability for getting it wrong

•  But mostly because, as one critic puts it, it is “ridiculously bad

What happens next?

The bill is scheduled for a hearing in the House Judiciary Committee on November 16, 2011. Until then, expect the debate to continue, perhaps becoming more vehement as the hearing approaches. And watch this space: we’ll be adding legal commentary as it comes in to JD Supra.


See alsoStop Online Piracy Act: What Does SOPA Mean For Businesses?


Additional Commentary


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