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Leahy’s Protect IP bill even worse than COICA; Critics Argue the Bill will Make The Internet a Police State

Your last chance to see naked girls may be before Orrin Hatch and this Leahy character take over.

from – Sen. Patrick Leahy (D-Vt.) today introduced a revised version of a controversial bill that would give the Department of Justice and individuals new powers to enforce copyright and trademark law against “rogue” and “pirate” Web sites that offer unlicensed copies of protected content or which sell illegal knock-offs of brand-name goods.

The new bill was long expected. A late draft leaked out last week.

The proposed law, “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property” or Protect IP, includes several revisions to a draft introduced last year, known then as “Combating Online Infringement and Counterfeits Act,” or COICA.

The drafters of Protect IP have tried to respond to some of the most severe criticisms of COICA, which was seen as dangerously vague on its definition of the kinds of Web sites that, under the proposal, can be condemned by the Department of Justice. Critics included public interest groups on both the left and right, the Consumer Electronics Association, domain registries, and operators of large university computer networks.

Members of Congress also objected. In particular, Sen. Ron Wyden (D-Ore.), kept the bill from reaching the Senate floor in the last Congress.

Criticism of COICA included concern that it gave far too much power to the Department of Justice to block non-U.S. domains without adequate due process protections. Critics also noted that more precise tools were already available to protect copyright and trademark holders from wholesale abuse of their rights by rogue sites, such as the 1998 Digital Millennium Copyright Act.

Registries and other Internet infrastructure providers were especially concerned with provisions that could have required any provider of domain name look-up services to comply with court orders to block access to the underlying IP address of a condemned domain name.

Lawmakers didn’t seem to appreciate that domain name address resolution takes place throughout the Internet, not just by larger ISPs and registries. Indeed, there are as many as a million worldwide domain names “resolvers,” and it is unlikely U.S. courts could or would order all of them to comply with a blocking order.

But incomplete blocking could seriously undermine the integrity of this key feature of the Web’s architecture, incentivizing truly rogue Web site operators to use shadow registration systems or simply forgo domain names and rely solely on IP addresses. (A domain name is merely a shorthand to the underlying IP address of the server, and isn’t necessary to reach the domain.)

Protect IP responds to some of these concerns. For example, under the revised bill the Attorney General cannot bring action against the domain name directly until first trying to sue the registrant or owner/operator. Suing the domain name itself is a shorthand legal technique that features prominently and notoriously in the Department of Homeland Security’s on-going “Operation In Our Sites” antipiracy efforts, which deals exclusively with U.S. Web sites.

And under the revised bill “nonauthoritative domain name system servers” need only take “the least burdensome technically feasible and reasonable measures” available to block access to condemned sites.

But critics have already condemned the new version, noting that it not only failed to remove some of the most dangerous features of COICA, but has also added expansive provisions that the earlier draft didn’t include. TechDirt’s Mike Masnick, for example, notes that the narrower definition of an “Internet site dedicated to infringing activities” in Protect IP is still both broad and vague. And the Electronic Frontier Foundation’s Abigail Phillips wrote earlier today that “Despite some salient differences…in the new version, we are no less dismayed by this most recent incarnation than we were with last year’s draft.”

Some concessions by the drafters of Protect IP turn out to be chimerical. For example, forcing the government to sue the owner/operator rather than the domain name itself, which reduces the likelihood of domain names being condemned without giving notice to the registrant, is an improvement that evaporates on closer inspection.

That’s because the attorney general can still go after the domain directly if the owner/operator does not have “an address within a judicial district of the United States.” But Protect IP applies only to nondomestic domains–that is, domains registered outside the U.S. Most such registrations are likely to be by companies or individuals without a U.S. address.

Like COICA, Protect IP expands the web of enforcement techniques by requiring advertising networks and financial transaction providers to cut ties to domains found to violate the law. But the new version now adds search engines and others to the list of providers who can be conscripted into complying with court orders. Protect IP would require “information location tools” to “take technically feasible and reasonable measures, as expeditiously as possible,” to remove or disable access to the site associated with a condemned domain, including blocking hypertext links to the site.

Another new provision encourages advertising networks and financial transaction service providers (though not search engines), to cut ties voluntarily with domains it believes are “dedicated to infringing activities.” As long as such actions are undertaken in good faith and with “credible evidence,” Protect IP immunizes those providers from liability for damages caused by erroneous actions against domains.

Perhaps most worrisome of all, Protect IP adds a provision that allows copyright and trademark holders to sue the owner/operator of a domain directly. Again, the provision applies only to nondomestically-registered domains, but it allows the private party, like the government, to sue the domain name itself if the registrant does not have a U.S. address.

That’s important because in all cases, once a suit is initiated, the plaintiff can ask the court to issue an injunction or restraining order effectively shutting the site down. Private parties, like the government, can also use the court order to demand cooperation from financial transaction providers and Internet advertising services.

Thus, with minimal court proceedings and perhaps without any opportunity for the defendant to respond or participate, the draft law would enable the Department of Justice or a private party to effectively shut down a nondomestic Web site, putting the burden on the owner/operator to prove that the site is not “dedicated to infringing activities” as defined in the law.

Preemptively shuttering a Web site is certainly one way to curb illegal distribution of copyrighted materials and black market goods, but many see it as a blunt instrument that could ban other, legal content on the site. And, as has already occurred in the Homeland Security seizures, condemning a domain name can have fatal consequences when a site is accidentally blocked even though it is not operating illegally.

By comparison, rights holders already have the ability, under the DMCA, to force site operators to remove particular content that infringes copyrights. The “notice and takedown” regime, increasingly automated by large-scale content hosts including YouTube and eBay, has been generally successful in protecting licensed content without suppressing legally-protected speech.

So why expand those tools so broadly and dangerously under Protect IP? According to rights holders, additional tools are necessary to curb wholesale copyright piracy, especially of movies, and counterfeit goods including medication. The Software and Information Industry Association, for example, applauded the introduction of Protect IP. “The importance of this bill,” according to an SIIA spokesman, “lies in the fact that it will eliminate critical technical and financial resources that are used to move pirated and counterfeit goods.”

For sites that operate entirely outside the U.S., “notice and takedown” and private lawsuits are legally difficult to pursue, and are largely ineffective. But the need to forcibly “enlist” the support of registries, search engines, advertising networks and financial transaction processors underscores both the difficulty and danger of expanding existing legal tools to deal with non-domestically registered domains.

For one thing, condemning nondomestic domains for their failure to abide by U.S. copyright and trademark law sets a dangerous precedent. Though copyright and trademark are largely uniform in the developed world, there are still important differences that could whipsaw Web site operators and the service providers who would be required to help enforce the new law. “Fair use” and other authorized uses of protected content are not uniform.

Moreover, other governments might use similar techniques to enforce their own laws, some of which would surely conflict with deeply-held American principles. According to David Sohn, senior policy counsel at the Center for Democracy and Technology, “Domain name blocking raises tricky cybersecurity questions and would set a dangerous international precedent for using the domain name system to try to impose domestic laws on foreign Internet activity.”

If the U.S. can block domains that violate its copyright and trademark laws, in other words, other countries would feel free to do the same to enforce laws restricting political or other speech that would be protected in the U.S.

It’s worth emphasizing that Protect IP, even more so than COICA, applies to nondomestically-registered domains. That’s in part because the U.S. government believes it already has far more expansive and effective powers to condemn rogue U.S. Web sites under the 2008 PRO IP Act. That’s the law that the Department of Homeland Security’s Immigration and Customs Enforcement division has recently been using to seize domestically-registered domain names and reroute them to an ICE page indicating the underlying site was operating illegally.

In particular, ICE has been using PRO IP to invoke “civil forfeiture” laws, which allow the government to seize “property” used in the commission of certain crimes without ever getting a conviction of the underlying crime.

Protect IP does nothing to curb ICE’s use of civil forfeiture law to interrupt domestic Web sites the agency believes are criminally violating copyright law. Under PRO IP, the agency has applied in hundreds of cases to seize a domain name without notice to the registrant and with minimal investigation of whether the domains are in fact violating the law. The agency has been frequently embarrassed to find it has seized domain names that are not violating copyright law in any way, underscoring the danger of allowing such actions to be taken with minimal procedural safeguards.

A number of serious legal questions have been raised about ICE’s use of forfeiture law to seize domain names, but so far no legal challenge has been brought. When it does, the agency’s practices will be exposed to even more scrutiny, and may be found to fail a variety of constitutional requirements.

Indeed, the existing evidence of ICE’s poor performance should have given pause to Senator Leahy and his co-sponsors. Protecting copyright and trademark are of course important objectives. But doing so by trampling due process rights, tinkering dangerously with the mechanics of the Internet, and impressing into police duties an expanding set of Internet service providers, hardly seems the best solution.

from – The US government is determined to stop online piracy, even if it means turning the Internet into a full on virtual police state.

Remember the draconian COICA bill? It was very unpopular and received a lot of harsh criticism from people who care about their First Amendment rights. It wasn’t passed because of how much people hated it. This obviously angered Big Media and many other huge copyright holders.

But unfortunately the US government hasn’t given up its quest to please Big Media. You’d think that legislators would get the hint and stop trying to censor the Internet in favor of Big Media, but no, this is America after all. And when the public doesn’t like a proposed law, our government gives us another similar law that is much worse than the one that came before it.

Perhaps it is a way to punish people for resisting things that they perceive as unconstitutional?

After reading a report and a rough draft of the new anti-piracy bill on TorrentFreak and Techdirt respectively I can tell you this, “The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (PROTECT IP Act) is much worse than its predecessor COICA. If you value the Internet it is in your best interest to follow this emerging issue very closely.

You may have mixed feelings about P2P file sharing and Internet piracy, and that would be understandable. It’s important to know that file sharing and piracy are being used as excuse to go after the First Amendment in the digital realm. It’s another boogeyman that you are supposed to be afraid of. This time it’s not even a freaking person!

This bill isn’t designed to protect creativity or intellectual property; it’s designed to give corporations and government unprecedented power to control free speech and the sharing of information.

Big Media claims that piracy and file sharing is destroying their business model and so therefore it is destroying the economy. That’s why the text of the bill tries to make it sound like this is all going to be done for the sake of protecting the public’s best interests:

“Copyright infringement and the sale of counterfeit goods are reported to cost American creators and producers billions of dollars and to result in hundreds of thousands in lost jobs annually. This pervasive problem has assumed an especially threatening form on the Internet.”

Lost jobs? Hmm. That’s a big political concern right now. Can you see how they want the gullible masses to be scared of what will happen if this bill isn’t passed?

This bill greatly increases the government’s power to go after alleged copyright infringers, that is something people should be very worried about. But it will also allow private copyright holders to use some of the same tools as the Government does to stop copyright enforcement and intellectual property protection. Can you image a world where News Corp has the same power as the government to go after “dangerous” copyright infringers?

Government and copyright holders will be able to shut you down without due process. I hope you don’t have a website that shares controversial information or anything like that. Because if this new bill is passed there won’t be very much stopping the government from claiming that you need to be shut down for the good of our national security.

And of course, nowhere in the bill does it mention any of the constitutional issues that come with granting government and Big Media power to police the Internet.

Nope we are just given an assurance that this legislation is in the best interest of the public because it will protect people from any website that “endangers the public health.” And if the government seizes your website or shuts it down the only protection you have is that you can “petition the court to suspend or vacate the order.” But in the past we’ve seen that can take up to several months if you can even get them to listen to you at all.

You can expect the government to cram this bill down our throats in the near future. Are copyright infringers the new “terrorists”? They might be if this bill passes.

Do you really want the government to decide what websites are appropriate for the public? That is what this bill will do. Do yourself a favor and go and skim the rough copy of this bill. Even if you don’t like file sharing or P2P, it should be pretty clear that this bill is an attack on free speech.


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