Full Text Of The PROTECT IP Act Released: The Good, The Bad And The Horribly Ugly

Free Speech

from the and-here-we-go dept

Yesterday, we got our hands on a leaked copy of the “summary” document put together by those writing the new version of COICA, now renamed the much more media friendly PROTECT IP Act. It looked bad, but some people complained that we were jumping ahead without the actual text of the bill, even if the summary document was pretty straightforward and was put together by the same people creating the bill. Thankfully, the folks over at Don’t Censor the Internet have the full text of the PROTECT IP Act, which I’ve embedded below as well. Let’s break it down into the good, the bad and the horribly ugly.

The Good:

It looks like the drafters clearly heard some of the complaints that many have raised concerning the attacks on due process and free speech and have scaled some of them back (though, not as much as they want you to believe — but we’ll get to that). Officially, the bill limits the “definition” of what constitutes a site dedicated to infringing activities. While COICA clearly focused on the domain names as the party, PROTECT IP also recognizes that regular lawsuits should be brought against those responsible, rather than just focusing on taking down the site (in legal terms, it requires an “in personam action” — against the person — be filed before an “in rem action” — against the property). This could, in theory, provide more due process for those running such sites.

The bill also attempts to make it clear that, officially, PROTECT IP does not expand secondary liability. In addition, the bill would require that the Attorney General (or the copyright holder) send notice to those impacted “upon commencement” of such actions. This is an improvement. Today, with domain seizures, it takes weeks or sometimes months for site owners to be given notice. On top of that, PROTECT IP no longer includes the ability to go to domain registers and registrars and require them to remove domains or hand them over to the government. Finally, it attempts to narrow the scope of what qualifies as being covered by the act under the phrase “dedicated to infringing material.”

The Bad:

When you dig into the actual text, nearly all of these “good” changes are either not really true, or are greatly limited by other aspects. On the “limit” to the definition of what sites qualify, it’s still incredibly broad:

The term “Internet site dedicated to infringing activities” means an Internet site accessed through a specific domain name that has no [substantial/significant] use other than, or is designed, operated, or marketed by its operator persons operating in concert with the operator, [and is in fact,] primarily as a means for —

1. enabling or facilitating the reproduction, distribution, or performance of copyright works, in complete or substantially complete form, in a manner that constitutes copyright infringement under section 501 of title 17, or offering goods or services in violation of section 1201 of title 17; or
2. enabling or facilitating sale, distribution, or promotion of goods, services or materials bearing a counterfeit market, as that term is defined in section 34(d) of the Lanham Act;

[provided that there is no objectively reasonable interpretation of an express license between the owner or operator of such Internet site and the copyright owner or trademark owner or an agent thereof that authorizes the activities;]

That’s somewhat narrower than COICA’s terminology, which is here:

For purposes of this section, an Internet site is ‘dedicated to infringing activities’ if such site-

??(1) is otherwise subject to civil forfeiture to the United States Government under section 2323; or

??(2) is–

??(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer–

??(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or

??(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ?An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes?, approved July 5, 1946 (commonly referred to as the ?Trademark Act of 1946? or the ?Lanham Act?; 15 U.S.C. 1116(d)); and

??(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.

Narrower? Sorta… but still quite open and vague. Under the new definition, it seems you could still claim that a service like YouTube (especially in its early days) could have run afoul of this law. If this had been in effect a decade ago, we might not have a YouTube today. Think about that for a second… It also seems like nearly all music blogs are illegal under this definition. That doesn’t seem good.

As for requiring an in personam action, which in theory would allow for a court hearing and the individuals or companies who operate sites targeted by this bill to get a fair hearing before the site is taken down or otherwise blocked or limited, there’s a pretty big loophole there. It says that if either the Attorney General or the copyright holder “was not able to find” the registrant or owner of the site or “no such person found has an address within a judicial district of the United States,” then they can skip the whole in personam action and jump straight to the in rem action, against the website itself. That’s a pretty big loophole.

As for the promise that it doesn’t expand secondary liability, that’s nice to say but it’s simply untrue. By its very nature, the entire purpose of the bill is to extend secondary liability to third parties that had previously been almost entirely immune from such liability: ad networks, payment processors, search engines and ISPs now face liability if they do not disconnect service from certain websites. That is, without a doubt, a pretty massive expansion of secondary liability, no matter how many times the drafters of this Act insist it’s not.

The whole thing about no longer going directly after domains via registrars and registers is a red herring. As is clearly noted in the summary, the whole reason for this is because the drafters figure this is redundant, since ICE has already shown with Operation In Our Sites that it can already seize such domains. So, it can “give this up” without really giving it up at all (though, potentially this leaves the government open to a loss in court on this issue).

Also bad is that the bill clearly encourages service providers to take “voluntary” action against sites that those providers deem to be infringing. The bill provides specific liability protection, so that if these providers cut off service to a site under the incorrect belief that it was dedicated to infringing activities, there’s no remedy for those sites.

The Horribly Ugly:

The PROTECT IP Act includes, as mentioned, a “private right of action,” which COICA did not contain. This lets copyright holders make use of some of the aspects of the Act, which are completely unnecessary, considering they already have reasonable options under existing laws. This is yet another case of regulatory capture, in which a private industry is being granted additional, extraordinary and unnecessary powers to stifle new technologies and innovation, because in their estimation it infringes on their copyrights. Remember the long list of new innovations that the entertainment industry has so deemed, including (but not limited to): player pianos, radio, cable TV, the photocopier, the VCR, the DVR, the MP3 player, YouTube, etc.

Haven’t we learned by now that every time the industry screams that it’s being harmed by infringement, the reality is almost always something entirely different?

Also on the “horribly ugly” side of things is the extension of this bill to cover search engines. That is, when the Attorney General uses the law, one of the things that can be done is obtaining an order saying search engines must no longer link to certain sites. This seems like a massive form of meddling in how a search engine operates. I also can’t see how it could survive First Amendment scrutiny. It’s a blatant case of the government telling a search engine what it can and cannot link to in its index.

Similarly, remember that part in “the bad” section about voluntary actions? In the section on such voluntary actions in the bill, not only does it include search engines (i.e., this is the government urging search engines to censor on the copyright industry’s behalf), but it also includes domain registers and registrars — who, you may recall, had been left out of the other parts of the bill. So despite most of the bill not applying to them, domain registers and registrars are now encouraged to simply take down sites on a voluntary basis, if they believe they’re dedicated to infringement. And if they do so, they are immune from liability for damages caused. In other words, pretty much any domain can be disappeared by its register or registrar with little real recourse, and, in fact, there is encouragement for this to happen.

All in all, it’s clear that the drafters of this bill sought to cut off some of the biggest criticisms that were raised last time, in hopes of appeasing enough critics to get this passed, but left in plenty of loopholes and added some even worse parts to the bill as well. It’s a bad bill by any measure and should not become a law.

Filed Under: censorship, coica, copyright, due process, free speech, protect ip