PROTECT IP Act
The PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011; United States Senate Bill S.968) is a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to infringing or counterfeit goods", especially those registered outside the U.S. The bill was introduced on May 12, 2011 by Senator Patrick Leahy (D-VT) and 11 initial bipartisan co-sponsors. The Congressional Budget Office estimated that implementation of the bill would cost the federal government $47 million through 2016, to cover enforcement costs and the hiring and training of 22 new special agents and 26 support staff. The Senate Judiciary Committee passed the bill, but Senator Ron Wyden (D-OR) placed a hold on it.
The PROTECT IP Act is a re-write of the Combating Online Infringement and Counterfeits Act (COICA), which failed to pass in 2010. A similar House version of the bill, the Stop Online Piracy Act (SOPA) was introduced on October 26, 2011.
The PROTECT IP Act defines infringement as distribution of illegal copies, counterfeit goods or anti-DRM technology, and infringement exists if "facts or circumstances suggest [the site] is used, primarily as a means for engaging in, enabling, or facilitating the activities described". The bill says it does not alter existing substantive trademark or copyright law.
The bill provides for "enhancing enforcement against rogue websites operated and registered overseas", and authorizes the United States Department of Justice to seek a court order in rem against websites dedicated to infringing activities themselves, if through due diligence an individual owner or operator cannot be located. The bill requires the Attorney General to serve notice to the defendant. Once the court issues an order, it could then be served on financial transaction providers, Internet advertising services, Internet service providers, and information location tools to require them to stop financial transactions with the rogue site and stop linking to it. The term "information location tool" is borrowed from the Digital Millennium Copyright Act and is understood to refer to search engines, but could cover other sites that link to content.
|“||The Protect IP Act says that an "information location tool shall take technically feasible and reasonable measures, as expeditiously as possible, to remove or disable access to the Internet site associated with the domain name set forth in the order". In addition, it must delete all hyperlinks to the offending "Internet site".||”|
Nonauthoritative domain name servers would be ordered to take technically feasible and reasonable steps to prevent the domain name from resolving to the IP address of a website that had been found by the court to be “dedicated to infringing activities.” The website could still be reached by its IP address, but links or users that used the website’s domain name would not reach it. Also search engines—such as the already protesting Google—would be ordered to “(i) remove or disable access to the Internet site associated with the domain name set forth in the [court] order; or (ii) not serve a hypertext link to such Internet site.” Furthermore, trademark and copyright holders who have been harmed by the activities of a website dedicated to infringing activities would be able to apply for a court injunction against the domain name to compel financial transaction providers and Internet advertising services to stop processing transactions to and placing ads on the website, but would not be able to obtain the domain name remedies available to the Attorney General.
The PROTECT IP Act has received bipartisan support in the Senate, with introduction sponsorship by Patrick Leahy (D-VT), and co-sponsorship by 39 Senators. The bill is supported by copyright and trademark owners in business, industry and labor groups, spanning all sectors of the economy. It is opposed by numerous businesses and individuals, pro bono, civil, human rights and consumer rights groups, and education and library institutions.
Supporters include the National Cable & Telecommunications Association, the Independent Film & Television Alliance, the National Association of Theatre Owners, the Motion Picture Association of America, the Directors Guild of America, the American Federation of Musicians, the American Federation of Television and Radio Artists, the International Alliance of Theatrical Stage Employees, the Screen Actors Guild, International Brotherhood of Teamsters, Nashville Songwriters Association International, Songwriters Guild of America, Viacom, Institute for Policy Innovation, Macmillan Publishers, Acushnet, Recording Industry Association of America, Copyright Alliance and NBCUniversal.
The U.S. Chamber of Commerce and AFL-CIO have come together in support of the bill. In May and September of 2011, two letters signed by 170 and 359 businesses and organizations, respectively—including names such as National Association of Manufactures (NAM), the Small Business & Entrepreneurship Council, Nike, 1-800 Pet Meds, L’Oreal, Rosetta Stone, Pfizer, Ford Motor Company, Revlon, NBA, and Sony—were sent to Congress endorsing the Act and encouraging the passage of legislation to protect intellectual property and shut down rogue websites. Support for the bill has also come from noted constitutional expert Floyd Abrams, who issued a letter to Congress asserting that the PROTECT IP Act is constitutionally sound.
The legislation is opposed by the Electronic Frontier Foundation, Yahoo!, eBay, American Express, Google, Reporters Without Borders, and Human Rights Watch. Internet entrepreneurs including Reid Hoffman of LinkedIn, Twitter co-founder Evan Williams, and Foursquare co-founder Dennis Crowley signed a letter to Congress expressing their opposition to the legislation. The Tea Party Patriots have argued that the bill "is bad for consumers". A letter of opposition was signed by 130 technology entrepreneurs and executives and sent to Congress to express their concern that the law in its present form would "hurt economic growth and chill innovation in legitimate services that help people create, communicate, and make money online". Oregon Senator Ron Wyden has publicly voiced opposition to the legislation, and placed a Senate hold on it in May 2011, citing concerns over possible damage to freedom of speech, innovation, and Internet integrity.
According to Sherwin Siy of Public Knowledge, past attempts to limit copyright infringement online by way of blocking domains have always generated criticism that blocking domains would fracture the Domain Name System (DNS) and threaten global functioning of the Internet, with this bill being no different. By design, all domain name servers world-wide should contain identical lists; with the changes proposed, servers inside the United States would have records different from their global counterparts, making URLs less universal.
Five Internet engineers, Steve Crocker, David Dagon, Dan Kaminsky, Danny McPherson and Paul Vixie have prepared a whitepaper suggesting that the DNS filtering provisions in the bill "raise serious technical and security concerns" and would "break the Internet", while other engineers and proponents of the act have called those concerns groundless and without merit. One particular concern expressed by network experts is that hackers would offer workarounds to private users to allow access to government-seized sites, but these workarounds might also jeopardize security by redirecting unsuspecting users to scam websites. Supporters of the bill, such as the MPAA, have argued that widespread circumvention of the filtering would be unlikely. The CEO of the Information Technology and Innovation Foundation compared the DNS provisions to car door locks, noting that while they aren't foolproof against thieves, we should still use them. A browser plugin called MAFIAAFire Redirector already exists that redirects visitors to an alternative domain when a site's primary domain has been seized. The Mozilla Foundation says that United States Department of Homeland Security (DHS) requested by phone that Mozilla remove the plugin, a request with which they have not yet complied. Instead, Mozilla's legal counsel has asked for further information from the DHS, including legal justification for the request.
The bill has been described by critics as effectively creating a blacklist. However, only a court order specifically addressing a particular domain name triggers the requirement to cut off activity with it (once multiple court orders are in effect a list will form).
Civil liberties issues
Floyd Abrams said “The Protect IP Act neither compels nor prohibits free speech or communication… the bill sets a high bar in defining when a website or domain is eligible for potential actions by the Attorney General…”. The Information Technology and Innovation Foundation likewise supports the PROTECT IP Act and has said that concerns about the domain name remedy in the legislation are undercut by the already ongoing use of that approach to counter spam and malware.
The bill has been criticized by Abigail Phillips of Electronic Frontier Foundation for not being specific about what constitutes an infringing web site. For example, if WikiLeaks were accused of distributing copyrighted content, U.S. search engines could be served a court order to block search results pointing to Wikileaks. Requiring search engines to remove links to an entire website altogether due to an infringing page would raise free speech concerns regarding lawful content hosted elsewhere on the site.
Google chairman Eric Schmidt has stated that the measures called for in the PROTECT IP Act are overly simple solutions to a complex problem, and that the precedent set by pruning DNS entries is bad from the viewpoint of free speech and would be a step toward less permissive Internet environments, such as China's. As chairman of the company that owns the world's largest search engine, Schmidt has declared "if there is a law that requires DNSs to do X and it's passed by both Houses of Congress and signed by the President of the United States and we disagree with it then we would still fight it."
Business and innovation issues
A legal analysis by the Congressional Research Service (CRS) notes concerns by opponents such as American Express and Google that the inclusion of a private cause of action would result in stifled Internet innovation, protect outdated business models and at the cost of an overwhelming number of suits from content producers. "Legislation should not include a private right of action that would invite suits by 'trolls' to extort settlements from intermediaries or sites who are making good faith efforts to comply with the law," Google vice-president and Chief Counsel Kent Walker has said in Congressional testimony.
"Rogue sites jeopardize jobs for film and TV workers," according to the Motion Picture Association of America, which cites several government and independent industry studies on the effects of online piracy, including a report by Envisional Ltd. that concluded one quarter of the content on the internet infringes copyright. The Recording Industry Association of America points to a 2007 study by the Institute for Policy Innovation that found that online piracy caused $12.5 billion dollars in losses to the U.S. economy as well as more than 70,000 lost jobs.
"If we need to amend the DMCA, let's do it with a negotiation between the interested parties, not with a bill written by the content industry's lobbyists and jammed through Congress on a fast track," urged venture capitalist and Business Insider columnist Fred Wilson in an October 29th editorial on the changes that the current House and Senate versions of the proposed legislation would make to the safe harbor provisions of the DMCA. "Companies like Apple, Google, Facebook, and startups like Dropbox, Kickstarter, and Twilio are the leading exporters and job creators of this time. They are the golden goose of the economy and we cannot kill the golden goose to protect industries in decline," he said.
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