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

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.