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    Sounding The Alarm: Return Of US Legislation Against Global “Rogue” Websites

    Published on 15 May 2011 @ 5:51 pm

    By , Intellectual Property Watch

    Intellectual property rights holders, access to knowledge proponents, presumably online scam artists, and possibly governments and international organisations interested in internet governance heard the call of the introduction this week of the “Protect IP Act” in the US Senate. The bill is aimed at strengthening US law enforcement’s ability to stop international websites offering counterfeit goods or unauthorised copyrighted content.

    The new bill, S. 968, introduced by Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, and others, is available here [pdf]. The full name is the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act.” Its predecessor, approved in the last Congress by Leahy’s committee, was S. 3804, the Combating Online Infringements and Counterfeits Act (COICA).

    US Democrats, from President Obama on down, have shown themselves to be close with Hollywood and other rights holders. Leahy’s press release is here.

    In recent months, the Justice Department has taken an increasing number of actions to take down websites deemed to be violating IP rights, and causing concern among other governments that the United States’ preferential influence over the underlying system of the internet might need to be addressed through multilateral means (see for instance here, here, here, and here).

    Industry groups representing rights holders certainly did, and issued a flood of statements praising the legislation. Praise for the bill came from the Chamber of Commerce, National Association of Manufacturers, Recording Industry Association of America, Copyright Alliance and others. The Chamber has a website dedicated to so-called rogue websites.

    Much of the praise focussed on expected job creation (or job saving), though it was unclear whether there is any agreed way to measure the bill’s eventual impact on jobs.

    “Under the Protect IP Act, foreign websites, formerly operating outside the realm of US law, would no longer be allowed to exploit US registrars, registries, internet service providers, payment processors, search engines and ad placement services to sustain their illicit online businesses,” said a coalition of the Independent Film & Television Alliance, Motion Picture Association of America, and National Association of Theatre Owners.

    Tom Giovanetti of the Institute for Policy Innovation (IPI) in Texas issued a statement praising the Protect IP Act that echoed industry statements, but also spoke to anticipated concerns from those seeking to ensure that overly strong copyright protection does not undermine the public’s access to knowledge. He suggested that in fact those who work to protect public access online might have the opposite effect, and that consumer groups and other concerned parties should just trust the government to do the right thing.

    “Those who advocate the internet as a lawless zone do a disservice to users of the internet and in fact advocate policies that will discourage wider Internet adoption,” he said. “We know that the sponsors of this legislation understand the importance of including limitations and safeguards along with these new tools, and we thank them for including those appropriate safeguards in the legislation.”

    According to the Intellectual Property Owners Association, significant changes in this version of the bill include a limited private right of action and a narrower definition of rogue websites.

    Non-Industry View

    There was quick reaction to the bill’s reintroduction among those focussed on knowledge access and restraint in IP rights measures in US policymaking.

    Public Knowledge issued a statement attributed to Sherwin Siy, deputy legal director of Public Knowledge, who blogged about the bill here and said it is very similar to its predecessor.

    “The bill, like the former COICA, overreaches in a number of areas, including allowing for the blacklists of websites, the definitions of the types of companies covered by the bill and allowing private companies to get injunctions against credit card and other firms that serve targeted sites,” he said.

    “The bill as written can still allow actions against sites that aren’t infringing on copyright if the site is seen to ‘enable or facilitate’ infringement – a definition that is far too broad,” Siy added. “The bill amounts to an acquiescence to the content lobby’s idea that everyone whose systems touch their content has a price to pay – if not in direct dollars, then in deputized vigilance on their behalf.”

    Academic Wendy Seltzer posted about the bill on her blog, here. She said this “son-of-COICA” would be problematic for businesses operating online and trying to avoid liability. “Rather than ‘protecting’ intellectual and creative industry, this bill would make it less secure, giving the US a competitive disadvantage in online business,” she said.

    In particular, she focussed on the definition of infringing activities, and the private right of action, which (unlike the IPO above), she said is appears to be a near duplicate of the last bill, though she said it might have expanded the definition to include movie studios harmed by the rights holders loss.

    Seltzer also highlighted provisions on use of the internet Whois data that shows who owns websites, remedies, and possible voluntary action by financial transaction providers and advertising services to stop service to anyone without fear of liability.

    “We’ve already seen that it takes little to convince service providers to kick users off, in the face of pressure short of full legal process (see everyone vs Wikileaks, Facebook booting activists, and numerous misfired DMCA takedowns); this provision insulates that insecurity further,” Seltzer said. The DMCA refers to the US Digital Millennium Copyright Act, which established a system of “notice-and-takedown” for potentially infringing material online.

    The Electronic Frontier Foundation also did an analysis of the bill, raising concern over several points especially related to internet service providers and others who might be liable – now possibly including search engines, or Facebook, Twitter and so forth.

    Separate Bill to Make Illegal Streaming a Felony

    At the same time, a coalition of the Independent Film & Television Alliance, Motion Picture Association of America, and National Association of Theatre Owners issued a statement praising a similar new bill, S. 978, from Senators Amy Klobuchar (D-Minnesota) and John Cornyn (Republican, Texas), also members of the Senate Judiciary Committee. That bill would “classify the illicit online streaming of copyrighted content a felony, and bring it into line with other forms of content theft,” they said. The Copyright Alliance also issued a statement of praise for this bill.

    William New may be reached at wnew@ip-watch.ch.

     

    Comments

    1. Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT-IP) Act Introduced in the Senate says:

      [...] William New for IP Watch. Sounding The Alarm: Return Of US Legislation Against Global “Rogue” We… [...]

    2. Sen. Klobuchar Introduces Anti-Streaming Legislation says:

      [...] is here.  The IP Enforcement coordinators legislative recommendations are here. Thanks to IP Watch for the pointer. Share Filed Under: Domestic Legislation Tagged With: [...]

    3. IP-Watch: “Washington Declaration” Demands Return Of Public Interest In IP Rights | Don't trade our lives away says:

      [...] [4] Sounding The Alarm: Return Of US Legislation Against Global “Rogue” Websites:http://www.ip-watch.org/weblog/2011/05/15/sounding-the-alarm-return-of-us-legislation-against-global… Advertisement LD_AddCustomAttr("AdOpt", "0"); LD_AddCustomAttr("Origin", "other"); [...]

    4. Tech Industry Raises Concerns Over Protect IP Act | Intellectual Property Watch says:

      [...] At issue is S. 968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP). The bill was introduced earlier this year (IPW, US Policy, 15 May 2011). [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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