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PROTECT IP Act: Using Domain Name Tactics to Enforce Intellectual Property Rights

-- By YanFu - 13 Nov 2011

In May 2011, Senator Patrick Leahy (D-VT) introduced S.968, The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, also known as the Protect IP Act.  The bill's goal is to give the government and copyright holders an extra weapon to fight websites that contain copyright-infringing content.  The Act is a re-write of the Combating Online Infringement and Counterfeits Act (COICA) introduced by Leahy in 2010, which passed the Senate Judiciary Committee but never made it onto the Senate floor.

Private corporations and other rights holders want the ability to shut down unauthorized websites where Internet users could download movies, television shows, music, and video games.  Websites offering pirated digital content record about 53 billion hits per year.  Many of these sites are hosted outside of the United States.  The PROTECT IP Act gives the Department of Justice the power to seek an injunction or restraining order against an allegedly infringing website.  The government can then use that order to force search engines, certain Domain Name System providers, and advertising companies to unlist the target web site and stop financial transactions with it. An operator of a domain name server would be compelled to “ take the least burdensome technically feasible and reasonable measures designed to prevent the domain name described in the order from resolving to that domain name's Internet protocol address.” Links or users that type in the website's domain name into their browsers would not reach it, but the website would still be able to be accessed using its IP address. The bill also creates a private right of action. A copyright holder can seek an injunction blocking "financial transaction providers" and "internet advertising services" from doing business with the targeted site.

There are serious issues with this legislation. PROTECT IP infringes on due process. Under the Digital Millennium Copyright Act (DMCA), an Internet Service Provider (ISP) or host (such as YouTube? ) must promptly comply with a take-down notice regarding potential infringement. However, the alleged infringer has the option to send a counter-notice if she has a good faith belief that the content was taken down unfairly. If the content owner takes no further action, then the ISP or host is then required to put the material back up within two weeks. PROTECT IP lacks the due process protections of the DMCA. Once a site has been identified as an infringer, payment processors and advertising networks are forced to cut off service, effectively blacklisting the site before it has been convicted of any wrongdoing. The bill does not require notice or a proper hearing before action is taken. This places an undue burden on those associated with the site to prove their innocence. Unlike under the DMCA, where the host has the incentive to put the content back up pending further action and review, website proprietors won't even get a chance to respond until they've already been shut down.

Furthermore, when domain name tactics are used against websites with a mix of lawful and unlawful content, the entire website is affected. This broad approach contrasts with the notice-and-takedown regime of the DMCA, which is used to target specific infringing content. This could also lead to censorship of the Internet, even where infringement isn't taking place. For example, a video content host such as YouTube? might have to approve videos in advance or risk legal action. YouTube? may err on the side of caution in order to protect itself. Research has shown that, where heavy legal liability is placed on companies, employees tasked with self-censorship have a strong incentive to over-censor. PROTECT IP would have a chilling effect on free speech. For instance, an author may be targeted even when his use of another's work counts as “fair use.” However, the lack of protections in the PROTECT IP Act combined with the potentially prohibitive cost of litigation may ensure that, even when the targeted website proprietor could win in court, the site remains blacklisted. Some parties may also take advantage of the Act to censor negative information about them. For example, in 2008, the Church of Scientology issued a copyright violation claim against YouTube under the DMCA after an interview video with Tom Cruise appeared on the site. Claiming that the video came from a longer recruiting pitch for new members, and that it was pirated and edited from copyright material, the Church demanded the removal of the video. If the PROTECT IP Act passes, other groups could use its provisions to remove information that is critical of them. This could be a highly effective legal tactic against defendants without the financial resources or will to fight back.

There are also potential economic harms resulting from the passage of PROTECT IP. Compliance with the Act would require additional spending by Internet companies to hire staff and implement technologies to monitor and censor content. This would create additional financial burdens and legal risks for start-ups and could prove to be an obstacle for the formation of new companies. Furthermore, since the system encourages self-censorship, ISPs that also create online content may use it to harm their competitors by strictly enforcing potential infringements against them.

The government may have legitimate interests in fighting unlawful internet activity, but the costs and risks of the PROTECT IP Act must be seriously weighed against any additional benefits it has over current legislation.

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