Weekly Update

SOPA gets washed out in election

Whatever else Tuesday’s election results may signify, they are likely to have a significant impact on telecommunications, antitrust, and intellectual property policy when the new congress is convened in January. The entertainment industry lost a number of key allies on Capitol Hill, and the results have scrambled the leadership of key committees in both the House and Senate at a time when a number of major IP and telecom issues are being teed up.

Hollywood lost a loyal supporter with the defeat of Howard Berman (D-Calif.), whose district had straddled the Hollywood Hills. Berman was defeated by fellow Democrat Brad Sherman, whose district abutted Berman’s. Republican-led redistricting in 2010 landed both of them in the same district, and California’s open primary system, in which the top two finishers go through to the general election regardless of party, pitted them against each other.

While Sherman also has been friendly to Hollywood, Berman was a senior member of the House Judiciary Committee, which is responsible for copyright and patent law. There is no certainty Sherman will assume that seat. On the Republican side, Judiciary Committee chairman Lamar Smith (R-Tex.) will be term-limited out of that role under GOP seniority rules. He’s expected to be replaced by Rep. Bob Goodlatte (R-Va.).  Goodlatte’s elevation to the full-committee chair will leave open his current job as chair of the Intellectual Property subcommittee.

Berman was an early co-sponsor of the Stop Online Piracy Act (SOPA), and he is one of four supporters of that controversial bill who will not be returning in January. Rep. Joe Baca (D-Calif.), like Berman, was a victim of redistricting and lost his seat to a fellow Democrat. Another SOPA co-sponsor, Rep. Mary Bono Mack (R-Calif.) was also defeated Tuesday, while a fourth, Rep. Elton Gallegly (D-Calif.) is retiring.

Bono Mack chaired the Commerce, Manufacturing and Trade subcommittee of House Energy and Commerce, which has jurisdiction over online privacy and data security, and her departure leaves that critical job up for grabs as well.

SOPA and its Senate counterpart, the Protect IP Act (PIPA), have become a political third rail, and are unlikely to be revived. But some technology and public interest groups see an opportunity to tap the opposition energy those bills aroused to try to roll back some of the strict copyright enforcement measures Congress has enacted in recent years. Hollywood could find itself fighting at a disadvantage against those efforts without allies like Berman and Bono Mack in key positions.

The change in personnel on the Judiciary Committee also comes as Congress may be asked again to try to address the issue of orphan works. The U.S. Copyright Office issued a Notice of Inquiry in late October seeking comments on orphan works, the first step in what is expected to be a new push for legislative action.

Orphan works are works that are still in copyright but whose copyright owners are either unknown or cannot be located, making it impossible to secure a license for commercial exploitation. The Copyright Office issued a report on the issue on 2006 proposing a legislative solution that would allow unlicensed exploitation of orphan works, with provisions for compensating the copyright owner should one later come forward to make a claim. Several bills were introduced over the next four years but none was ever enacted.

Orphan works were at the heart of the controversy surrounding the initial proposed settlement in the Google Books case and the issue continues to cloud efforts to digitize archives of copyrighted material, from books to music to photographs.

On the Senate side, Herb Kohl (D-Wis.), who currently chairs the antitrust panel of Judiciary Committee, is retiring, leaving that critical post open just as the U.S. Justice Department appears poised to bring a groundbreaking antitrust action against Google over its alleged manipulation of search results. The current acting head of the Justice Department’s Antitrust Division, Joseph Wayland is also stepping down, leaving the leadership of that office uncertain. President Barack Obama nominated William Baer as permanent head of the antitrust office last year but his nomination was held up in the Senate.

Another critical upcoming appointment by Obama will be a new head of the Federal Communications Commission. The current chairman, Julius Genachowski, is slated to step down in 2013

Genachowski’s tenure has been marked by controversies on issues such as network neutrality and spectrum policy, and his efforts in those areas drew fierce opposition from some Republicans on Capitol Hill. His replacement will need to be confirmed by the Senate, where Democrats hold sway. But individual senators have the power to block presidential appointments by placing a “hold” on their consideration and it’s not out of the question that Republicans in the upper chamber use the appointment of a new chairman as leverage to try to roll back the FCC’s net neutrality rules or  delayed planned spectrum auctions.

Who says elections don’t have consequences?