Wednesday, July 6, 2011

Bad Policy Ideas: The Protect IP Act (Updated)

The Senate Judiciary Committee recently cleared "The Protect IP Act" (S.968), an early step in the enactment process.  Like many other proposed policies designed to "combat piracy", it's a really bad bill that can have serious consequences for many users not engaged in copyright piracy, while really doing little to effectively limit or reduce unauthorized copying of protected content.
This bill's language aims to make it easier for people claiming copyright infringement to close down and penalize allegedly infringing websites.  Specifically, it allows the Dept. of Justice (DOJ), based on a claim of alleged infringement on a website, to:
  • force Internet Service Providers to deny access to a site's URLs
  • force search engines to stop returning results from those sites
  • require credit-card companies and advertisers to stop doing business with those sites
As a letter from a number of leading Intellectual Property scholars and lawyers argues
"Giving this enormous new power not just to the government but to any copyright and trademark owner would not only disrupt the operations of the allegedly infringing Web site without a final judgment of wrongdoing, but would make it extraordinarily difficult for advertisers and credit-card companies to do business on the Internet."
While these actions might harm the allegedly infringing website, the actions required are not undertaken by the site directly, but rather by others (ISPs, search engines, credit-card companies and advertisers).  The bill would create a significant burden for them, a burden that is likely to passed on to their customers - the public.

Considering the abject failure of a similar effort to restrict Net access to allegedly infringing sites (based on a law that sets supposedly higher standards of proof for obtaining a Court order), and the recent Court finding that a major effort to enforce online copyright violations (Righthaven) was based on fraudulent claims of ownership, it's not surprising that the proposed legislation is opposed by just about everyone other than the MPAA (film industry trade group) and the large number of former MPAA lawyers that President Obama has appointed to jobs in the DOJ.

For those interested in the earlier efforts at closing sites, I've posted on this earlier.  To give you a quick idea how badly this effort failed, it included seizing the URLs (and effectively closing down the sites for several days before the error was admitted) of 84,000 innocent sites, because the government gave the wrong list of sites to the court (both the govt. and the court later accused the other of insufficient oversight); further, an independent group found that almost all of the 92 sites trumpeted as cases of successfully combating copyright piracy or trademark infringement (selling counterfeit goods) were back up and continuing operations within a day of being "shut down for good."  So even the "successes" did little to stop the alleged piracy and sale of counterfeit goods.

As for Righthaven, they were a firm of lawyers who claimed to have acquired copyright ownership of content published in newspapers and online news sites owned by Stephens Media.  In a year, Righthaven filed more than 200 lawsuits for copyright violation, and threatened to sue hundreds, if not thousands, more - with the goal of getting cash payments to "settle" copyright infringement claims.  In several cases that actually went to court, it was discovered that Righthaven didn't actually own the copyrights, and therefore did not have the legal standing to file the lawsuits or seek damages.  The firm now faces sanctions, with one federal judge calling its litigation efforts "disingenuous, if not outright deceitful."

Perhaps the most serious problem from a legal and moral perspective is that the bill would allow anyone claiming copyright or trademark ownership to seek to close down sites with a simple allegation of infringement.  No protection of due process, no right to respond to or challenge the allegation, and apparently no consideration of whether or not the unauthorized use was permissible under fair use or other exemptions.

Update - The letter from IP lawyers and professors in fact makes a strong argument that the proposed bill would be unconstitutional on several grounds.  First, the bill would suppress speech without prior notice, and the Supreme Court has ruled that the government may not suppress speech without giving the speaker the opportunity to argue his case - such as the use fell under fair use protection.  Second, by blocking entire domains, the action would suppress all speech on the domain, including protected speech and speech and content that is not part of the alleged infringement.  There is a long history of Supreme Court cases overturning legislation that would suppress protected speech along with problematic content.

  Considering the problems with "insufficient oversight," and the recent Righthaven debacle, the potential for abuse seems overwhelming.  The actions that the bill authorizes is overbroad, with a significant potential for suppressing vast amounts of content that are not alleged to violate IP, including types of speech and content that is clearly protected.  As troubling as that is, the burden and cost of compliance of these actions are not placed on the infringing site, or born by the plaintiff; rather, they are imposed on and undertaken by others - the ISPs, search engines, payment services and advertisers - who have had no part in the alleged infringement. In fact, the fear of potential costs, critics conclude, would likely discourage the companies running and creating value on the Internet from expanding services, particularly to innovate websites and services where IP precedents are few.  This is likely to have the practical effect of threatening "to kill innovation by technology companies in the media space."  As for content producers and distributors, making the bar for authorization so low, and the penalties so high, is likely to stifle creativity and work to effectively eliminate Fair Use in the digital realm.    It's a really bad idea that needs to be challenged.  It's not only bad, but ineffectual and stupid - and the people pushing it should be publicly shamed.

Sources: "Anti-Piracy Bill Could Hurt Online Advertising,Online Media Daily
"Nevada Judge Threatens Sanctions for Copyright Troll,"

Updated 7 July 2011 to add arguments that Protect IP Act would be unconstitutional, and to add and rephrase some arguments in the final paragraph.
Source: "Dozens of law professors: PROTECT IP Act is unconstitutional," ars
The letter can be found here
The legislative language of the PROTECT IP Act can be found here

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