Congress is drafting a bill to follow-up last year’s controversial COICA anti-piracy bill. A draft copy and summary of the bill have leaked online, and critics are already calling it an “internet censorship” bill. Most dramatically, the bill would allow the government to force changes to search results-and would allow copyright and trademark owners to directly attack advertisers and payment processors linked to websites accused of infringing copyright.
The new bill, in true Washington style, stretches its name to fit into a “clever” acronym; it’s called the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property” Act-the PROTECT IP Act. Mike Masnick of Techdirt has acquired a leaked summary of the bill from a Congressional source; and an activist website called “Don’t Censor the Net” has now posted the full text of the bill.
Here are the key points of the bill:
» The essence of the bill would allow the government to quickly shut down websites that are deemed to be pirate websites, or in the words of the bill, sites “dedicated to infringing activities.” The Justice Department could go to court and get an order without any kind of trial, and without the defendant having any say. That’s an enormous difference from how pirate sites are dealt with now; some websites have certainly been shut down for breaking copyright laws-take a look at Grokster and Limewire, two high-profile examples-but it can take years of litigation (and that has traditionally been paid for by content owners, not by taxpayer-funded government attorneys.)
» The Justice Department would be empowered to dismantle websites thought to be piracy sites, by 1) seizing domain names; 2) block payment processors and ad networks from working with the site; and 3) require search engines to delete the results from their listings.
While all of those changes represent unprecedented government intervention in the operation of the internet, the idea of government lawyers forcing changes in search results in particular would seem to raise some First Amendment concerns. A page of Google (NSDQ: GOOG) or Bing results is really just an editorial judgment; a “front page” akin to that of newspapers, but created by software rather than human editors.
» The bill would allow copyright and trademark owners to directly engage the same activity, but only against payment processors or advertisers. Internet companies have been willing to work with the government on some of these changes but they’ve been opposed to a private right of action. Top lawyers from both Verizon and Google, for example, have explicitly told Congress they oppose a private right of action.
» The third parties affected by this law would not be required to take action “beyond what is technically feasible or reasonable,” according to the bill summary. Service providers would never be required to modify their networks or facilities to help the government shut off these infringing sites.
» The changes would affect both copyright and trademark owners. Large content companies are primarily concerned here with the websites that illegally stream their content. Such sites continue to pop up prominently in search results, despite the availability of legal alternatives like Netflix (NSDQ: NFLX) and Hulu, and in hearings Congressional representatives have shown real concern about that.
» Similar actions could also be taken against sites that violate trademark law by selling counterfeit or unauthorized goods, whether it’s handbags, sports jerseys, or pharmaceuticals.
The big concern here is how the government would define these pirate sites that could be quickly shut down. According to the bill’s text, such a site would have to have no substantial use other than enabling the unauthorized “reproduction, distribution, or performance” of “subtantially complete” copyrighted works. The problem is, there’s always plenty of gray area in this area. Last year the government seized a few music blogs that had an array of editorial content, but also had dozens of links to music files not authorized by record companies. They’ve also seized the domain name of rojadirecta.org, a streaming website that broadcasts the content of U.S. companies without permission, but has been deemed legal by courts in its home country of Spain.