Law in the Internet Society

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-- By YanFu - 27 Oct 2011

In May 2011, Senator Patrick Leahy (D-VT) introduced S.968, The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, also known as the Protect IP Act.  The bill's goal is to give the government and copyright holders an extra weapon to fight websites that contain copyright-infringing content.  The Act is a re-write of the Combating Online Infringement and Counterfeits Act (COICA) introduced by Leahy in 2010, which passed the Senate Judiciary Committee but never made it onto the Senate floor.

Private corporations and other rights holders want the ability to shut down unauthorized websites where Internet users could download movies, television shows, music, and video games.  Websites offering pirated digital content record about 53 billion hits per year.  Many of these sites are hosted outside of the United States.  The PROTECT IP Act gives the Department of Justice the power to seek an injunction or restraining order against an allegedly infringing website.  The government can then use that order to force search engines, certain Domain Name System providers, and advertising companies to unlist the target web site and stop financial transactions with it. An operator of a domain name server would be compelled to “ take the least burdensome technically feasible and reasonable measures designed to prevent the domain name described in the order from resolving to that domain name's Internet protocol address.” Links or users that type in the website's domain name into their browsers would not reach it, but the website would still be able to be accessed using its IP address. The bill also creates a private right of action. A copyright holder can seek an injunction blocking "financial transaction providers" and "internet advertising services" from doing business with the targeted site.

There are serious issues with this legislation. PROTECT IP infringes on due process. Under the Digital Millennium Copyright Act (DMCA), an Internet Service Provider (ISP) or host (such as YouTube? ) must promptly comply with a take-down notice regarding potential infringement. However, the alleged infringer has the option to send a counter-notice if she has a good faith belief that the content was taken down unfairly. If the content owner takes no further action, then the ISP or host is then required to put the material back up within two weeks. PROTECT IP lacks the due process protections of the DMCA. Once a site has been identified as an infringer, payment processors and advertising networks are forced to cut off service, effectively blacklisting the site before it has been convicted of any wrongdoing. The bill does not require notice or a proper hearing before action is taken. This places an undue burden on those associated with the site to prove their innocence. Unlike under the DMCA, where the host has the incentive to put the content back up pending further action and review, website proprietors won't even get a chance to respond until they've already been shut down.

The bill could also lead to censorship of the Internet, even where infringement isn't taking place. For example, a video content host such as YouTube? might have to approve videos in advance or risk legal action. YouTube? may err on the side of caution in order to protect itself. Research has shown that, where heavy legal liability is placed on companies, employees tasked with self-censorship have a strong incentive to over-censor.

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r5 - 17 Nov 2011 - 11:13:12 - YanFu
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