A Cure Worse Than the Disease?

A proposed U.S. law would see websites shut down on just an accusation of copyright infringement.

On May 12, in a rare show of bipartisan co-operation, Senators Patrick Leahy (D-Vermont), Orrin Hatch (R-Utah), and Chuck Grassley (R-Iowa) introduced a bill entitled Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, also known as the Protect IP Act. The stated goal of the legislation is quite simple: to protect the economic interests of American intellectual property owners from theft and piracy online.

Shortly after the bill was tabled, Sen. Ron Wyden (D-Oregon) used his power to put a temporary hold on the legislation. In his estimation, the act, as worded, would have the undesired effects of limiting free speech and negatively impacting e-commerce. In a press release on the issue, Wyden said:

“At the expense of legitimate commerce, [the bill's] prescription takes an overreaching approach to policing the internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the internet.”

The senator’s appraisal of the bill is quite accurate. As written, the Protect IP Act gives the attorney general and private intellectual property holders the power to not only sue owners and operators of U.S.-based websites, but to execute what is known as an in rem action – essentially an action against property without involving the owner – against websites where the owner is not American or cannot be located.
One of the tools the Protect IP Act would give rights holders is the ability to prevent the U.S. public from accessing websites that are believed to be violating intellectual property rights. Access to websites being challenged in a lawsuit under this law would be restricted at the ISP level. This will obviously put an additional strain on ISPs – one the government won’t reimburse them for.

The Electronic Frontier Foundation, a non-profit digital-rights organization, warns that the bill’s definition of “domain name system” is too broad and could easily be interpreted to cover such things as personal and corporate email clients, routers, and even operating systems. It should be noted that such interpretations, if ever made, would be left to the courts. That being said, powerful IP rights holders tend to hire pretty good lawyers.

Many critics of the legislation, including the EFF, warn that allowing individual IP owners to block access to websites will limit the ability of site owners to defend themselves before a judgment is rendered. The foundation points out that this is ostensibly an offence to due process. The bill vests plaintiffs with the powers of restraining orders, preliminary injunctions, and injunctions to enforce their rights against non-domestic domain owners so long as their service is being used by Americans and the service “harms holders of United States intellectual property rights.”

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Source: The Mark