WASHINGTON, DC—The Senate is taking another stab at aggressive federal legislation aimed at tackling digital piracy online, with a special emphasis on websites hosted overseas. A bill called the PROTECT IP Act was introduced today by Senators Patrick Leahy (D-Vt.), Orrin Hatch (R-Utah), and Chuck Grassley (R-Iowa). Call it Son of COICA, the flawed bill introduced by Leahy and Hatch last year that this version presumably improves upon. Whether it does or not depends entirely upon one’s position regarding IP rights, censorship and industry/government control of the internet.
A quick evaluation by Ars Technica reveals a bill that did not did not “shrink in scope” from its predecessor, but “got much broader. Under the new proposal, search engines, internet providers, credit card companies, and ad networks would all have to cut off access to foreign ‘rogue sites’—and such court orders would not be limited to the government. Private rightsholders could go to court and target foreign domains, too.”
A statement regarding the introduction of the bill on Sen. Leahy’s website highlights the following key updates contained in the legislation:
* A narrower definition of an Internet site “dedicated to infringing activities”;
* Authorization for the Attorney General to serve an issued court order on a search engine, in addition to payment processors, advertising networks and Internet service providers;
* Authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is “dedicated to infringing activities,” but with remedies limited to eliminating the financial viability of the site, not blocking access;
* Requirement of plaintiffs to attempt to bring an action against the owner or registrant of the domain name used to access an Internet site “dedicated to infringing activities” before bringing an action against the domain name itself;
* Protection for domain name registries, registrars, search engines, payment processors, and advertising networks from damages resulting from their voluntary action against an Internet site “dedicated to infringing activities,” where that site also “endangers the public health,” by offering controlled or non-controlled prescription medication.
The revised definition of an infringing site is:
The term "Internet site dedicated to infringing activities" means an Internet site accessed through a specific domain name that has no [substantial/significant] use other than, or is designed, operated, or marketed by its operator persons operating in concert with the operator, [and is in fact,] primarily as a means for—
1. enabling or facilitating the reproduction, distribution, or performance of copyright works, in complete or substantially complete form, in a manner that constitutes copyright infringement under section 501 of title 17, or offering goods or services in violation of section 1201 of title 17; or
2. enabling or facilitating sale, distribution, or promotion of goods, services or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Lanham Act;
[provided that there is no objectively reasonable interpretation of an express license between the owner or operator of such Internet site and the copyright owner or trademark owner or an agent thereof that authorizes the activities]
According to a detailed summary of the bill, the PROTECT IP Act “authorizes the Justice Department to file a civil action against the registrant or owner of a domain name that accesses a foreign infringing internet site, or the foreign-registered domain name itself, and to seek a preliminary order from the court that the site is dedicated to infringing activities. For an order to issue, the Justice Department must also show that the internet site is directed at U.S. consumers and harms holders of U.S. intellectual property. The Department would be required to serve notice of the action promptly after filing.
“If the court issues an order against the registrant, owner, or domain name, resulting from the DOJ-initiated suit, the Attorney General is authorized to serve that order on specified U.S. based third parties, including internet service providers, payment processors, online advertising network providers, and search engines. These third parties would then be required to take appropriate action to either prevent access to the internet site (in the case of an internet service provider or search engine), or cease doing business with the internet site (in the case of a payment processor or advertising network).
The bill also contains provisions for rights holders not found in COICA, including the right to bring an action against the owner, registrant or internet site dedicated to infringement, whether domestic or foreign, and to seek a court order against the domain name registrant, owner or the domain name.
“However, if the order issues,” the summary states, “the rights holder must seek the court’s permission to serve that order and may only do so on a payment processor or online advertising network, and not an Internet service provider or search engine (as available for a DOJ-initiated action).”
Third parties are protected by the bill to the extent that they take reasonable and good faith efforts to comply with such orders, in which case they will not be held liable for any action or inaction unless they are found in contempt of court. But third party providers such as payment processors and online advertising networks are also protected from more aggressive actions they may choose to take, including voluntarily ceasing to do business with infringing websites outside of any court ordered action.
“Those parties are immunized from damages resulting from actions taken against an Internet site where they have a good faith belief on credible evidence it is dedicated to infringing activities,” the summary states.
In addition to its main sponsors, the PROTECT IP Act is cosponsored by Senators Chuck Schumer (D-N.Y.), Dianne Feinstein (D-Calif.), Sheldon Whitehouse (D-.R.I.), Lindsey Graham (R-S.C.), Herb Kohl (D-Wis.), Christopher Coons (D-Del.), and Richard Blumenthal (D-Conn.).
In a joint statement issued today, a group of trade associations and guilds representing musicians, artists and other workers expressed its support for the bill.
“As the Guilds and Unions that represent 400,000 creators, performers and craftspeople who create the multitude of diverse films, television programs and sound recordings that are enjoyed by billions of people around the world,” the statement read, “we unequivocally support this bill which, by providing protection for our members’ work, clearly shows that our government will not condone or permit the wholesale looting of the American economy and American creativity and ingenuity—regardless of how that looting is disguised on the Internet to fool the American consumer.”
The Electronic Freedom Foundation, on the other hand, was as unimpressed with Son of COICA as it was with COICA.
“We’re still chewing through the issues, but on balance, it’s clear PROTECT IP is no improvement on COICA,” wrote Abigail Philips on the organization’s website.
It is almost certain that this version of the bill will not be the one that survives intact after moving through the Senate and the House. As it does, though, the adult entertainment industry, as much as any other industry impacted by global piracy, needs to pay close attention to its evolution and final form. The impact on the industry should the bill pass into law, no matter what form it eventually takes, is likely to have as profound an impact on the industry as the Digital Millennium Copyright Act (DMCA) has had since it was signed into law by President Clinton on October 28, 1998.
The full text of the PROTECT IP Act can be found here.