Protect IP Act would create a lot of criminals

Protecting intellectual property is a good idea; Sen. Leahy's anti-piracy bill is a bad one

The Senate Judiciary Committee has approved a draconian bill in a misguided effort to combat online piracy and counterfeiting.

S.968, the Protect IP Act — which has an annoyingly long and convoluted full title, created solely to provide a relevant acronym — was introduced by Sen. Patrick Leahy (D-Vt.). It was designed to “provide the Justice Department and rights holders with important new tools to crack down on rogue websites dedicated to infringing activities,” the senator said in introducing the bill.

Unfortunately, those tools are directed not against the infringing sites but against “specified U.S. based third-parties, including Internet service providers, payment processors, online advertising network providers and search engines.”

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In other words, the bill lumps together almost every segment of the Internet infrastructure with the real criminals, making everyone responsible for the activities of the pirates and counterfeiters. It allows a judge to decide which domains can and cannot be accessed in this country and which results a search engine is allowed to return and penalizes advertisers for carrying the wrong ads.

The National Association of Attorneys General likes the bill, saying in a letter to Leahy and others that “this narrowly tailored response to clearly illegal activity would enable effective action against the worst of the worst counterfeiters and pirates online.”

The problem is that the bill is not narrowly tailored at all. Its overly broad definition of an Internet site includes all links, indexes and pointers to that site. This makes Google, Bing and any other site with the wrong hyperlink an accessory to www.criminal.crime.

The law would allow the U.S. attorney general to take action against the owners or operators of “rogue websites operated and registered overseas” and require a preliminary injunction or a permanent injunction from a court to obtain a temporary restraining order. But because the overseas domain is outside the U.S. court’s jurisdiction, the orders are served against third parties in the United States. Operators of Domain Name System servers would be required to cut the sites off, search engines would be prohibited from returning the link for any search, advertising services forbidden to sell the ads, and financial transactions would be halted.

Although there might be a reasonable argument for halting financial transactions, the advertising prohibition is hard to swallow in an era in which corporate political contributions have been declared protected speech. And as has been pointed out many times already, cutting off DNS resolution and blocking search engine returns are more typical actions for China than the United States and just plain wrong.

Leahy defended the bill in the Senate, saying that “few things are more important to the future of the American economy and job creation than protecting our intellectual property,” and that “in today's business and fiscal climate, the harm that intellectual property infringement causes to the U.S. economy is unacceptable.”

All well and good. Few are likely to come out in favor of trademark and copyright infringement. But this does not justify the totalitarian approach taken in his bill. In essence, Leahy is repeating the oft-heard refrain of law enforcement and government officials: “My job would be so much easier if I didn’t have to worry about civil liberties and personal rights!”

This is no doubt true. But we should not give up those rights just to make a difficult job easier. Enforcing intellectual property rights against violators in other countries is difficult. Those responsible for it should get on with the difficult job of crafting the international tools and agreements necessary to do the job while respecting basic liberties in this country.

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Reader Comments

Mon, Jun 27, 2011

Well, FireThemAll has a point this bill will force everyone to pay for things a small percentage of the population does. This will only lead to hacker innovation and leave the Dept. of Justice in the dark. Its Hollywood's problem let Hollywood pay for it.

Sun, Jun 19, 2011 Mal

The government regulates counterfeit goods and currently blocks websites that sell them. All this bill does is extend that practice to counterfeit digital goods, which are really no different than any other bootlegged item. Anything anyone else says about this is just irrational fear.

Thu, Jun 16, 2011 Mike

Go after Google then... They host the videos but do you think the Government will do that?

Thu, Jun 16, 2011

@Tom Sydnor Oh, look! It's a RIAA/MPAA spy/tool come here to vent that Americans have too many freedoms. How quaint.

Tue, Jun 14, 2011 Tom Sydnor

Mr. Jackson,
I hate to question your literacy, but unlike you, I have actually read the PROTECT IP Act. Consequently, I can report that it will not “create a lot of criminals” because it contains NO criminal provisions and thus cannot “criminalize” any act that is currently not a crime. To the extent that you think otherwise, I can only conclude that you must not have had the time to read the bill before commenting on it.
For example, you say that the bill’s “overly broad definition of an Internet site [dedicated to infringing use]… makes Google, Bing and any other site with the wrong hyperlink an accessory to www.criminal .crime.”
Cute, but dead wrong. The scope of criminal liability for facilitating intentional trademark counterfeiting or copyright piracy is already defined by sections of the US Criminal Code that the PROTECT IP Act will not modify in any way. See 18 U.S.C. secs. 2, 4, 5, 241, 307, 1961-68. In no way would the PROTECT IP Act alter the existing scope of criminal liability that any U.S. search engine or website might already face for facilitating some third-party’s counterfeiting or piracy.
You also say, “the [PROTECT IP Act’s] advertising provision is hard to swallow in an era in which corporate political contributions have been declared protected speech.” Back on Earth, the Supreme Court has recognized—for decades—that advertising and “commercial speech” are potentially constitutionally protected, but in no way does that mean that any American company can legally support foreign counterfeiters or pirates by paying them to advertise otherwise lawful products or services. Such conduct has long been criminalized by the Racketeer Influenced and Corrupt Organizations Act. 18 U.S.C. secs. 1961-68.
In short, the PROTECT IP Act is really intended to ensure that American artists and brand owners do not have to get state AGs or the U.S. Department of Justice to criminally prosecute American internet intermediaries in order to ensure that those intermediaries abide by their existing legal duties to avoid knowingly profiting, in any way, from foreign counterfeiting and piracy. Nevertheless, if persons like you insist upon doing this “the hard way,” then that option is already available under existing law. But, seriously, Mr. Jackson, do you really think it should have to come to that?
--Tom Sydnor

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