PROTECT IP Act Seeks To Eliminate Due Process, Industry Organizations Applaud
A draft version of the already controversial "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", aka the PROTECT IP Act, leaked was introduced on Thursday by bipartisan leaders of the U.S. Senate Judiciary Committee, Senators Patrick Leahy (D-Vt.), Orrin Hatch (R-Utah), and Chuck Grassley (R-Iowa). This effort follows last year's unsuccessful attempt to pass COICA, the Combating Online Infringement and Counterfeit Acts, also introduced by Leahy. The PROTECT IP Act covers a broad range of copyrighted material including music and thus is quite relevant to the future of the music industry.
The proposed bill has already been widely attacked by legal rights advocates and applauded by organizations representing rights holders. I'm no lawyer and I long ago accepted that legal language operates separately from the rules of everyday discourse, i.e., it doesn't mean what it seems to mean. But here is my best understanding of the newly introduced PROTECT IP Act based on numerous sources that are then quoted below.
Based on a press release from the office of lynchpin Leahy, actions can be brought about against alleged copyright infringers by Attorney Generals without an actual trial. Search engines, payment processors, advertising networks and ISP's can be included despite provisions of the Digital Millennium Copyright Act (DMCA) that would exclude these players if acting in good faith. However, domain seizure is eliminated though possibly because that's now being done by the Department of Homeland Security who seized numerous domains this year.
In addition, from what I've gathered from the following sources, the bill would basically require all "information location tools" to remove any links to allegedly infringing services which would include search engines, web directories and, possibly, sites such as blogs linking to illegal downloads. The details will shift but basically it seems to be designed to disappear offenders from the web and cut off their income stream without due process. It seems similar to cops taking people's property in drug arrests in direct contradiction of the concept of "innocent until proven guilty". That said, this bill will be different by the time it gets to any kind of vote but it certainly appears to be overreaching.
An "Internet Death Penalty" –
Here are a variety of responses from writers and groups that feel the bill goes too far and errs in eliminating due process. Please see their articles for further clarification:
- CNET's Declan McCullah describes this bill as an "Internet death penalty".
- Techdirt points out that "the bill claims it includes 'safeguards, but those 'safeguards' are that after the court order has been issued and all the third party service providers (payment process, ad networks, ISPs, search engines) have been required to block service to the site, the site can 'petition the court to suspend or vacate the order.'"
- Abigail Phillips of the Electronic Frontier Foundation feels that "on balance, it's clear PROTECT IP is no improvement on COICA."
- Sherwin Siy, Deputy Legal Director and the Kahle/Austin Promise Fellow at Public Knowledge, reminds us that:
"We've seen in the past how many rightsholders have abused similar processes, issuing takedown notices regarding public domain works, mothers filming home videos or documentary filmmakers criticizing their work. The same trade organizations pushing for the passage of this bill have yet to admit that users should be able to space-shift works that they have already bought and paid for onto their own devices. How can we expect this new found power to be wielded by those same interests?"
In Support –
On the one hand I do certainly feel that rights holders deserve protection and that having cases drag on for years in the court is rather absurd, especially since small time copyright holders don't have the money to pursue such cases. On the other hand, this bill seems to be yet another bipartisan attack on due process that not only overreaches but creates a restrictive and punitive environment that is ultimately counterproductive to both art and business in a theoretically democratic society.
Certainly little seems to have been learned by trade organizations that supported outrageous penalties for filesharers who sometimes didn't really understand the implications of what they were doing and resulted in the destruction of whatever remaining public good will was possessed by major labels and, by extension, that of musicians.