Last November, I penned an essay on these pages about the COICA legislation that the U.S. Senate Judiciary Committee had unanimously approved. While I praised Congress’s efforts to tackle the problem of “rogue websites” — sites dedicated to trafficking in counterfeit goods and/or distributing copyright infringing content — I warned that the bill lacked crucial safeguards to protect free speech and due process, as several dozen law professors also cautioned. Thus, I suggested several changes to the legislation that would have limited its scope to focus on truly bad actors and reduced the probability of burdening protected expression through “false positives.” Thanks in part to the efforts of Sen. Ron Wyden (D-Ore.), COICA never made it a floor vote last session.
Today, three U.S. Senators introduced a similar bill, entitled the PROTECT IP Act (bill text), which, like COICA, establishes new mechanisms for combating Internet sites that are “dedicated to infringing activities.” I’m glad to see that lawmakers adopted several of my suggestions, making the PROTECT IP Act a major improvement over its predecessor. While the new bill still contains some potentially serious problems, on net, it represents a more balanced approach to fighting online copyright and trademark infringement while recognizing fundamental civil liberties.
Some of the major differences between COICA and PROTECT IP include:
- Under COICA, a website would have been deemed “dedicated to infringing activities” if it had no “demonstrable, commercially significant purpose other than” (emphasis added) to facilitate infringing activities. PROTECT IP, however, only covers websites with “no significant use other than” to facilitate infringing activities. This slight change in wording may seem trivial, but it’s actually quite significant, as lots of blogs, forums, and other sites engaged in noncommercial, but still protected, speech that may well have been subject to domain name disabling under COICA would likely be in the clear under PROTECT IP. However, as Public Knowledge’s Sherwin Siy points out, PROTECT IP’s definition of sites “dedicated to infringing activities” remains overly broad, as it doesn’t explicitly exempt online intermediaries that are otherwise protected by the 17 U.S.C. § 512(c) safe harbor. A site operator that is not engaged in acts of direct or willful secondary infringement should not be considered “under PROTECT IP if the site abides by the DMCA notice and takedown process, has no actual knowledge of infringing activities, does not derive a financial benefit directly attributable to infringement, and does not induce infringement.
- PROTECT IP, unlike COICA, does not automatically deem websites “otherwise subject to civil forfeiture” under 18 U.S.C. § 2323 to be “dedicated to infringing activities.” Given the extraordinary breadth of section 2323, which permits the government to seize any “property used, or intended to be used, in any manner or part to commit or facilitate the commission of” criminal copyright infringement, it’s a relief that language was removed.
- PROTECT IP requires that the Justice Department or a rights holder, in bringing an action against a site under the statute, attempt to commence an in personam action against the operator of an allegedly infringing website before an in rem action can be brought. From a due process perspective, this change is an improvement over COICA (which only provided for in rem actions), as it’s much more likely with an in personam action that an adversarial hearing will take place prior to the issuance of a temporary restraining order or preliminary injunction requiring a covered intermediary to disable service to a website.
- PROTECT IP adds interactive computer services to the list of intermediaries that are required to disable service to a website upon being served with a court order deeming the site “dedicated to infringing activities.” (DNS servers, financial transaction providers, and Internet advertising services were the only intermediaries bound by court orders issued under COICA.)
- PROTECT IP allows the Justice Department to take action against nondomestic domain names. (DHS asserts that it is already empowered to seize domestic domain names in accordance with 18 U.S.C. § 2323.) However, it also contains a new private right of action under which a rights holder may seek a court order against any domain name. Actions initiated by rights holders, if successful, only require ad networks and/or payment processors – but not DNS servers or interactive computer services – to disable service to infringing sites.
In light of these changes, I’m inclined to disagree with commentators, such as Techdirt’s Mike Masnick, who’ve argued that the PROTECT IP, a.k.a. the “Son of COICA,” is worse than the father. On net, PROTECT IP is less likely to impose incidental burdens on protected expression and more likely to allow website operators to successfully challenge illegitimate actions brought against them. That’s not to say I don’t have some concerns with PROTECT IP — its private right of action, while limited in scope, may harm some small websites that suffer from infringing content posted by users. Also, the voluntary actions clause is troubling, as I’ve argued before and as Wendy Seltzer argues here. While I’m all for voluntary actions in principle, these actions should not override private contracts or terms of service agreements that would otherwise be enforceable.
As lawmakers consider the PROTECT IP Act in coming weeks and months, they should also revisit 18 U.S.C. § 2323, a civil forfeiture provision enacted in 2008 as part of the PRO-IP Act. This extraordinarily broad statute has recently been criticized by many legal scholars. Rep. Zoe Lofgren has been very critical of the way in which seizures have been conducted. The statute should be narrowed to include only websites “dedicated to infringing activities,” and it should require the government to attempt to commence in personam actions in all instances. Domain names aren’t movable property; unlike, say, illegal drugs or weapons, there is no risk of a criminal “hiding” a domain name or destroying it before evidence of its illegality can be secured.
kw: mesh, networking, freedom, p2p, internet, bitcoin, asterisk, google, google voice, android, root, free, wireless, data, linux, voip, voice
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