Protect IP Act would create a lot of criminals

Sen. Patrick Leahy's copyright and trademark protection bill would impose draconian remedies and treat the entire Internet infrastructure as accomplices to online pirates and counterfeiters.

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 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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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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