PROTECT IP Renamed E-PARASITES Act; Would Create The Great Firewall Of America

from the censorship-galore dept

As was unfortunately expected, the House version of PROTECT IP has been released (embedded below) and it's ridiculously bad. Despite promises from Rep. Goodlatte, there has been no serious effort to fix the problems of the Senate bill, and it's clear that absolutely no attention was paid to the significant concerns of the tech industry, legal professionals, investors and entrepreneurs. There are no two ways around this simple fact: this is an attempt to build the Great Firewall of America. The bill would require service providers to block access to certain websites, very much contrary to US official positions on censorship and internet freedom, and almost certainly in violation of the First Amendment.

Oh, and because PROTECT IP wasn't enough of a misleading and idiotic name, the House has upped the ante. The new bill is called: "the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act" or the E-PARASITE Act (though, they also say you can call it the "Stopping Online Piracy Act").

The bill is big, and has a bunch of problems. First off, it massively expands the sites that will be covered by the law. The Senate version at least tried to limit the targets of the law (but not the impact of the law) on sites that were "dedicated to infringing activities" with no other significant purposes (already ridiculously broad), the new one just targets "foreign infringing sites" and "has only limited purpose or use other than" infringement. They're also including an "inducement" claim not found elsewhere in US regulations -- and which greatly expands what is meant by inducement. The bill effectively takes what the entertainment industry wanted the Supreme Court to say in Grokster (which it did not say) and puts it into US law. In other words, any foreign site declared by the Attorney General to be "inducing" infringement, with a very broad definition of inducing, can now be censored by the US. With no adversarial hearing. Hello, Great Firewall of America.

And while defenders of this bill will insist it's only designed to target truly infringing sites, let's just recall a small list of sites and technologies the industry has insisted were all about infringement in the past: the player piano, the radio, the television, the photocopier, the phonograph, cable tv, the vcr, the mp3 player, the DVR, online video hosting sites like YouTube and more. All of these things turned out to be huge boons for the industry. And yet, with a law like this in place, the old industry gets to kill off technologies they don't understand. Scary stuff.

And it's not just foreign sites impacted by this law (despite what supporters would have you believe). It appears to expand who would have to take on the entire burdens of enforcing this blacklist -- broadly naming "service providers" as defined in the DMCA. That's significant, because a big part of this bill is to undermine and strip away the safe harbors of the DMCA. The DMCA set up an important balance that gave online service providers freedom from liability if they pulled down content upon notification. This new bill provides a massive and ridiculous burden: allowing the Attorney General to create an internet blacklist that all service providers will need to block access to:
A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s Internet Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order.
On top of that, the bill says any attempt to get around such blocks can lead to liability. Would this put liability on things like MAFIAAfire? It sure sounds like it:
To ensure compliance with orders issued pursuant to this section, the Attorney General may bring an action for injunctive relief....

against any entity that knowingly and willfully provides or offers to provide a product or service designed or marketed for the circumvention or bypassing of measures described in paragraph (2) and taken in response to a court order issued pursuant to this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to provide such product or service.
While the text of the bill insists that nothing in it takes away the DMCA's safe harbors, once again this is a claim without the facts to back it up. A large part of the bill is an effective attempt to strip away the DMCA's safe harbors.

The only extraordinarily minor change against the interests of the entertainment industry is that the bill ever so slightly changes the "private right to action," which allows individual copyright holders to take action under this bill. This was a big problem in the old bill, and the only requirement here is that prior to making use of this private right to action, copyright holders have to provide "notice" to payment processors and ad providers. But then those service providers are expected to take action anyway, or face liability. So all this really does is take the court out of the process, and make it even easier for copyright holders to effectively kill off sites they don't like.

Think about this for a second: think how many bogus DMCA takedown notices are sent by copyright holders to take down content they don't like. With this new bill, should it become law, those same copyright holders will be able to cut off advertising and payment processing to such sites. Without court review.

And... because this bill wasn't already ridiculously bad enough, it also lumps in a House version of the felony streaming bill that will make huge swaths of Americans felons for streaming content online.

This bill is an abomination and an insult to the Constitution. It's unfortunate that Rep. Lamar Smith thinks this is worth introducing in its current state, and anyone who signs on to co-sponsor is effectively supporting mass censorship of the internet in the US, as well as the criminalization of huge numbers of Americans -- while putting a huge burden on the one part of the economy that actually is creating jobs. All because a few legacy companies in the entertainment industry refuse to adapt.

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  1. icon
    Jay (profile), 27 Oct 2011 @ 9:37pm

    Re: Re: Re: Re: Re: Re: Re:

    Mike has stated over and over again the piracy is inevitable, and that business models based on selling content are pretty much "buggy whip" businesses. It would seem at that point while he isn't directly supporting piracy, he is telling anyone who is touched by piracy to get use to it, and that it is unavoidable in his mind.

    You're right... Since Hollywood knows what's best for the rest of the world, let's call it what it really is. McCarthyism on steroids. Works for me.

    He has cheered on groups such as TPB as they try to give the stiff middle finger to content producers, and has posted sad little notices when they lose legal battles.

    Because they have nothing but links on their server from user generated content, or do you not understand what a magnet link is? Wait, don't answer that, I already know...

    Mike has also made it clear that while the internet "knows no borders", that he supports groups which move from jurisdiction to jurisdiction looking for the safety of local laws, rather than being responsible for what is on their sites, accessible from other countries.

    [citation needed] - But since you're trolling, we both know that won't happen will it?

    Mike has also been in the forefront of the "a link isn't infringement" argument. That argument is that as long as you didn't actually commit the copyright violation yourself, you are fine to profit from it.

    Excellent jump in logic. You should date Miko Miyazaki. You would do well until the inevitable showdown 10 minutes later. But I can't provide a link because it would be infringement. O NOES!

    Do you honestly think his "sell the scarce" refrain would hold water if piracy wasn't rampant?

    Ironic that you talk about water, when people still find a way to pay for bottled water. I guess those that collect rainwater are some kind of pirates for figuring out a way to buck the system. Those dang water collectors are killing the water industry!

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