Oral Remarks of Maria A. Pallante

Stop Online Piracy Act, H.R. 3261

November 16, 2011

Mr. Chairman, thank you for the opportunity to appear today. I would also like to thank you, Ranking Member Conyers, and the members of this Committee for your sustained leadership on copyright policy.

Congress has updated the Copyright Act many times over the past 200 years, including the enforcement provisions, but as we all know, this work is never finished. Infringers today are sophisticated and they are bold. They blatantly stream and disseminate books, music, films and software through websites, using the services of good faith American search engines, advertising networks, and credit card companies. This is not a problem that we can accept. In my view, it is about the rule of law on the Internet.

Much of SOPA employs a strategy of "follow the money." I testified in support of this approach in March, and I still agree that it is an important part of the equation. Many sites make money by selling illegal access to copyrighted works or by offering related advertising. But Congress should realize there are some limitations. Many of the worst sites do not sell infringing content—they offer it for free—and they do not run ads.

I have a lot of respect for Google. However, if you conduct a search for "download movies," Google’s search engine will supply the words, "for free.” And it will return a list of sites that offer illegal copies or streams at no charge and with no advertising. In these cases, others kinds of enforcement strategies are necessary. The same is true when damage is imminent—for example, when a site is streaming live sporting events or selling movies before they have been released to the public.

In the context of foreign infringing sites, SOPA addresses this problem by giving the Department of Justice the power to require search engines to dismantle direct hyperlinks—and—to require service providers to block the access of subscribers within the United States.

These actions require court approval and incorporate the existing legal standards of seizure and civil forfeiture—the same standards that ICE has used effectively for “Operation in Our Sites.”

Mr. Chairman, I do not want to suggest that blocking websites is a small step. It is not—and the public interest groups that oppose this part of the bill are right to be concerned about unintended consequences. However, it may ultimately come down to a question of philosophy for Congress. If the Attorney General is chasing 21st century infringers, what kinds of tools does Congress want to provide?  How broad and how flexible?

SOPA also gives copyright owners some tools, but these do not involve search engines or ISPs. I think this is the right calibration. Put another way, SOPA reflects the fact that many industries contribute to the success of the Internet and properly distinguishes between the actions that law enforcement and private citizens can bring.

One of the more interesting aspects of SOPA is that, before authors or other copyright owners can seek court orders, it requires them to alert payment processors and ad networks about infringing content and request that they sever financial ties. The approach is creative, and it provides incentives for the parties to cooperate. It also allows for counter notification. However, whether the notification system is ultimately effective will largely depend upon whether it can be implemented in a manner that is clear and fair for all involved. The intermediaries at issue are running businesses in good faith. And the websites at issue are entitled to due process.

SOPA does incorporate due process where court orders are involved. However, the notification system would operate outside the purview of a court and would therefore benefit from further due process review.

Finally, I do not believe it is the intent of SOPA to negate the safe harbors of the DMCA—and I do not read it that way. Nothing subjects ISPs to liability for their acts or their failures to act. No monetary relief may be obtained. And the injunctive relief permitted by SOPA appears to be consistent with what the DMCA already permits.

This said, the bill has many moving parts, and I note that a number of stakeholders with differing perspectives have offered productive suggestions. As the Committee works to refine SOPA, I encourage you to fully consider these suggestions.

However, I also believe that Congress has a responsibility to protect the exclusive rights of copyright owners and I hope you that will move forward with this in mind.

Thank you Mr. Chairman.