May 12, 2011 | By Abigail Phillips

The "PROTECT IP" Act: COICA Redux

Update: An official Senate version of the draft PROTECT IP Act has been released and is available here. This version changes the “interactive computer services” language mentioned in our post below to “information location tools,” a term that points back to section 512(d) of the Digital Millennium Copyright Act. In that context it’s been generally understood to refer to search engines, though there’s no guarantee we wouldn’t see efforts to expand the definition in actions under this bill. But in any case, requiring search engines to remove links to an entire website raises serious First Amendment concerns considering the lawful expression that may be hosted on the same domain.

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Last year’s rogue website legislation is back on the table, with a new name: the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011"—or (wink, wink) "PROTECT IP". The draft language is available here.

The earlier bill, which failed to pass thanks largely to a hold on the legislation placed by Senator Ron Wyden of Oregon, would have given the government dramatic new copyright enforcement powers targeted at websites "dedicated to infringing activities," even where those websites were not based in the United States. Despite some salient differences (described below) in the new version, we are no less dismayed by this most recent incarnation than we were with last year’s draft.

First, the legislation now includes a private right of action for intellectual property owners. This means that IP owners as well as the government can seek injunctions against websites "dedicated to infringing activities" in addition to court orders against third parties providing services to those sites. (Notably, IP owners can also bring actions to enforce the court orders.) Consider whether Viacom would have bothered to bring a copyright infringement action against YouTube—with the attendant challenges of arguing around the DMCA safe harbors—had it had this cause of action in its arsenal. The act includes language that says it's not intended to "enlarge or diminish" the DMCA's safe harbor limitations on liability, but make no mistake: rights holders will argue that safe harbor qualification is simply immaterial if a site is deemed to be dedicated to infringement.

Second, the scope of the language has been expanded to include additional categories of third-party providers that can be subject to court orders. Under the new act, "interactive computer services" and "servers of sponsored links" can be required to cease linking to particular websites. We'd heard about a potential "search engine provision," but these additions arguably go much further. An interactive computer service (the term, and its definition, are borrowed from the Communications Decency Act) could include not only Bing but also sites like Facebook, Twitter, and potentially any service or web page where a URL might turn up.

Court orders against interactive computer services don't apply in every context, though. The new version of the bill includes what appear to be some redundant and some alternative remedies where "nondomestic" domains are involved, remedies that are available in actions by the Attorney General but not private actors. (In the language of the bill, a "nondomestic" domain is one "for which the domain name registry that issued the domain name and operates the relevant top level domain, and the domain name registrar for the domain name, are not located in the United States.") The main distinction seems to be that interactive computer services can be ordered to stop linking only in actions brought by the Attorney General against nondomestic domains, but not in actions brought by the Attorney General against domains that are not nondomestic, nor in any actions brought by private plaintiffs.

Also, the new language no longer requires explicit action on the part of domain name registries and registrars, although it still reaches operators of nonauthoritative domain name system servers. Because of Immigration and Customs Enforcement’s ongoing practice of seizing domain names by prevailing on registries and registrars, however, the revision doesn’t seem all that meaningful. EFF denounced the earlier bill for its potential dangerous effects on the Internet's domain name system, and we’ll discuss the implications of the current legislation for DNS in more detail in a future post.

Finally, the bill now requires any potential plaintiff—whether it's the government or an IP owner—to make some attempt to identify a person or entity in connection with the infringement before proceeding against the domain name itself. The effort to inject a little due process into the mix is a good step, but it falls far short of the mark given the potential implications of these actions for online speech.

We’re still chewing through the issues, but on balance, it's clear PROTECT IP is no improvement on COICA.


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