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PROTECT IP Act

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PROTECT IP Act (short for Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, also known as United States Senate Bill S.968) is a bill introduced on May 12, 2011 by Senator Patrick Leahy (D-VT) and 11 original co-sponsors aimed at disrupting the business model of "rogue" websites, especially those registered outside the U.S., which are "dedicated to infringing activities." Having been passed out of the Senate Judiciary Committee, the Bill was placed on hold by Senator Ron Wyden (D-OR). The legislation is a re-write of the Combating Online Infringement and Counterfeits Act (COICA) which failed to pass in 2010.

The bill is supported by a wide range of business, industry and labor groups, spanning many sectors of the economy. It is opposed by numerous individuals, businesses, human rights and consumer rights groups, and education and library institutions.

Contents

The bill focuses on websites that have no significant use other than to facilitate copyright infringement, the hacking of copyrighted works, or trademark counterfeiting; or are designed, operated, or marketed by their operator, and facts or circumstances suggest are used, primarily for counterfeiting, copyright infringement, or hacking copyrighted works. The bill does not alter existing substantive trademark or copyright law. It provides enhanced remedies against websites “dedicated to infringing acitivities” that are not registered in the U.S., and would give the United States Department of Justice the power to seek a court order against those websites. The bill requires the Attorney General to follow existing federal court procedures, including providing notice to the defendant. Once the court issues an order, it could then be served on financial transaction providers, Internet advertising services, Internet service providers, and information location tools to require them to stop financial transactions with the rogue site and stop linking to it. Some have described the bill as including a “blacklist” but that is inaccurate. Only a court order specifically addressing a particular domain name triggers the requirement to cut off activity with it (once multiple court orders are in effect a list will form). The term "information location tool" is borrowed from the Digital Millennium Copyright Act and is understood to refer to search engines, but could cover other sites that link to content.

The Protect IP Act says that an "information location tool shall take technically feasible and reasonable measures, as expeditiously as possible, to remove or disable access to the Internet site associated with the domain name set forth in the order". In addition, it must delete all hyperlinks to the offending "Internet site".

At a technical level, nonauthoritative domain name servers would be ordered to take technically feasible and reasonable steps to prevent the domain name from resolving to the IP address of a website that have been found by the court to be “dedicated to infringing activities.” Although this would allow a website to remain accessible by numerical IP address, hyperlinks relying solely on the website’s domain name would not resolve. Also search engines—such as the already protesting Google—would be ordered to “(i) remove or disable access to the Internet site associated with the domain name set forth in the order; or (ii) not serve a hypertext link to such Internet site.” Furthermore, trademark and copyright holders who have been harmed by the activities of a website dedicated to infringing activities themselves would be able to apply for a court injunction against the domain name to compel financial transaction providers and Internet advertising services to stop processing transactions to and placing ads on the website, but would not be able to obtain the domain name remedies available to the Attorney General.

Support and praise

The PROTECT IP Act has received bipartisan support in the Senate, with introduction sponsorships by Patrick Leahy (D-VT), Chuck Grassley (R-IA), Orrin Hatch (R-UT), Christopher Coons (D-DE), Chuck Schumer (D-NY), Sheldon Whitehouse (D-RI), Lindsey Graham (R-SC), Richard Blumenthal (D-CT), Dianne Feinstein (D-CA), Al Franken (D-MN) and Herb Kohl (D-WI). Since introduction, Senators Lamar Alexander (R-TN), Kelly Ayotte (R-NH), Michael Bennet (D-CO), Roy Blunt (R-MO), John Boozman (R-AR), Benjamin Cardin (D-MD), Thad Cochran (R-MS), Bob Corker (R-TN), Richard Durbin (D-IL), Kristen Gillibrand (D-NY), Kay Hagan (D-NC), Amy Klobuchar (D-MN), Joseph Lieberman (I-CT), John McCain (R-AZ), Marco Rubio (R-FL), Jeanne Shaheen (D-NH), and Tom Udall (D-NM) have also signed on to co-sponsor S. 968.

Supporters include the National Association of Manufactures (NAM), the Small Business Council, Nike, 1-800 Pet Meds, L’Oreal, Netflix, Rosetta Stone, National Cable & Telecommunications Association, the Independent Film & Television Alliance, the National Association of Theatre Owners, the Motion Picture Association of America, the Directors Guild of America, the American Federation of Musicians, the American Federation of Television and Radio Artists, the International Alliance of Theatrical Stage Employees, the Screen Actors Guild, International Brotherhood of Teamsters, Nashville Songwriters Association International, Songwriters Guild of America, Viacom, Institute for Policy Innovation, Macmillan Publishers, Acushnet, Recording Industry Association of America, Copyright Alliance, and the United States Chamber of Commerce.

In a rare development, the U.S. Chamber of Commerce and AFL-CIO have come together in support S.968. Many industries have also publicly praised the PROTECT IP Act for cutting off access of rogue websites to the U.S. marketplace. On May 25, 2011, a letter signed by 170 businesses and organizations—including names such as NBCUniversal, Pfizer, Ford Motor Company, Revlon, NBA, and Macmillan—was sent to Congress encouraging the passage of the PROTECT IP Act this year. Support for the PROTECT IP Act has come from noted constitutional expert, Floyd Abrams, who issued a letter to Congress asserting that the PROTECT IP Act is constitutionally sound. Abrams said “The Protect IP Act neither compels nor prohibits free speech or communication… the bill sets a high bar in defining when a website or domain is eligible for potential actions by the Attorney General…” The Information Technology and Innovation Foundation likewise supports the PROTECT IP Act and has noted that concerns about the domain name remedy in the legislation is undercut by the ongoing use of that approach to counter spam and malware.

Opposition and criticism

The legislation is opposed by individuals and consumer rights groups such as the Electronic Frontier Foundation, and Yahoo!, eBay, American Express, Google, Reporters Without Borders, and Human Rights Watch. Executive chairman of Google Eric Schmidt, has been vocal in his opposition to the act citing dangers for a free internet. Oregon Senator Ron Wyden has publicly voiced opposition to the legislation, and placed a Senate hold on it in May 2011.

The bill has been criticized by Abigail Phillips of Electronic Frontier Foundation for not being specific about what constitutes an infringing web site. For example, if WikiLeaks were accused of distributing copyrighted content, U.S. search engines could be served a court order to block search results pointing to Wikileaks. Requiring search engines to remove links to an entire website altogether due to an infringing page would raise free speech concerns regarding lawful content hosted elsewhere on the site. Freelance writer Devin Coldewey has claimed that the fact that an injunction can be issued without notifying the allegedly infringing site nullifies the legal presumption of innocence. The ability of any private rights holder to bring legal action against a site via a court and require search engines to censor their search results may make the law unrealistic.

According to Sherwin Siy of Public Knowledge, attempts to limit copyright infringement online by way of blocking domains have always received the criticism that blocking domains would fracture the Domain Name System. Theoretically, all domain name servers world-wide contain identical lists; with the changes proposed, servers inside the United States would have records different from their global counterparts, making URLs less universal.

Google chairman Eric Schmidt has stated that the measures called for in the PROTECT IP Act are overly simple solutions to a complex problem, and that the precedent set by pruning DNS entries is bad from the viewpoint of free speech and would be a step toward less permissive internet environments, such as China's. As chairman of the company that owns the world's largest search engine, Schmidt has declared "if there is a law that requires DNSs to do X and it's passed by both Houses of Congress and signed by the President of the United States and we disagree with it then we would still fight it."

See also

References

  1. "S. 968: Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011". GovTrack. Retrieved 22 May 2011.
  2. ^ Phillips, Abigail. "The "PROTECT IP" Act: COICA Redux". Retrieved 22 May 2011.
  3. Wyden, Ron. "Overreaching Legislation Still Poses a Significant Threat to Internet Commerce, Innovation and Free Speech". Sovreign. Retrieved 28 May 2011.
  4. "Americans face piracy website blocking". BBC. 13 May 2011. Retrieved 24 May 2011.
  5. PROTECT IP Act of 2011, S. 968, 112th Cong. § 2(7); “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011. http://www.govtrack.us/congress/billtext.xpd?bill=s112-968&version=rs&nid=t0%3Ars%3A209
  6. See PROTECT IP Act of 2011, S. 968, 112th Cong. § 6; “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  7. PROTECT IP Act of 2011, S. 968, 112th Cong. § 3(b)(1); “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  8. PROTECT IP Act of 2011, S. 968, 112th Cong. § 3(c)(1); “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  9. PROTECT IP Act of 2011, S. 968, 112th Cong. § 3(d)(2); “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  10. 17 U.S.C. § 512 (d).
  11. PROTECT IP Act of 2011, S. 968, 112th Cong. § 3(d)(2)(D); “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011. http://www.govtrack.us/congress/billtext.xpd?bill=s112-968&version=rs&nid=t0%3Ars%3A265
  12. PROTECT IP Act of 2011, S. 968, 112th Cong. § 3(d)(2)(A)(i); “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  13. PROTECT IP Act of 2011, S. 968, 112th Cong. § 3(d)(2)(D); “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  14. PROTECT IP Act of 2011, S. 968, 112th Cong. § 4(d)(2); “Text of S. 968,” Govtrack.us. May 26, 2011. Retrieved June 23, 2011.
  15. Bill Summary & Status 112th Congress (2011 - 2012), “S.968 Cosponsors,” http://thomas.gov/cgi-bin/bdquery/z?d112:SN00968:@@@P.
  16. Spence, Kate (12 May 2011). "A Broad Coalition Indeed!". Retrieved 11 June 2011.
  17. Letter from Floyd Abrams, to Chairman Leahy, Ranking Member Grassley, and Senator Hatch, (May 23, 2011), http://www.fightonlinetheft.com/sites/default/files/file/Voices%20of%20Support/PROTECT%20IP%20Act/Protect%20IP%20Act%20Letter%20by%20Floyd%20Abrams%205%2023%2011.pdf (accessed June 23, 2011).
  18. Gaitonde, Rahul (May 27, 2011). "Senate Committee Passes PROTECT IP Act But Wyden Issues Quick Halt". Broadband Breakfast. Retrieved May 28, 2011.
  19. The Undersigned (2011), Public Interest Letter to Senate Committee on the Judiciary in Opposition to S. 968, PROTECT IP Act of 2011 (PDF), pp. 1–2, retrieved 2011-05-30
  20. ^ Halliday, Josh (18 May 2011). "Google boss: anti-piracy laws would be disaster for free speech". The Guardian. Retrieved 24 May 2011.
  21. "Wyden Places Hold on Protect IP Act". wyden.senate.gov. May 26, 2011.
  22. Coldewey, Devin. "Sequel To COICA Bill, The PROTECT IP Act, May Be Even Worse". CrunchGear. Archived from the original on 22 May 2011. Retrieved 22 May 2011.
  23. Siy, Sherwin. "COICA v. 2.0: the PROTECT IP Act". Policy Blog. Public Knowledge. Retrieved 24 May 2011.

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