The PROTECT IP Act Blacklists IP Infringing Websites: Do the Benefits Outweigh the Costs?

Insights July 15, 2011

On May 12, 2011, Vermont Senator Patrick Leahy introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act) to the Senate Judiciary Committee.  The bill is a revised version of the Combating Online Infringement and Counterfeits Act (COICA), which was unsuccessful a year ago.

The Act’s primary purpose is to prevent websites, both foreign and domestic, from infringing on the rights of U.S. patent holders.  However, the proposed procedures and methods to protect the patent holders have sparked justified controversy and opposition to the Act.  As such, Oregon Senator Ron Wyden held up the bill on May 31 to prevent it from reaching the full Senate for the time being.

Underlying DNS security concerns

Instead of attempting to shutdown or regulate the actual infringing sites, the Act regulates U.S. based sites and services that are associated with the infringing site and its entire corresponding domain, such as payment processors, advertising networks, Internet service providers, and most significantly, search engines.  Thus, if the U.S. Department of Justice, or any copyright holder, successfully gets a court injunction, the third party sites and services would be required to remove the entire domain of the infringing site from their search results, and cease any relationships with them.  All links to the site would be broken, and the infringing sites would be essentially invisible as well as lose their financial means.

However, this method gives the U.S. government the unparalleled power to interfere with the underlying domain name server (DNS) system, which is one of the foundations of Internet security and stability.  In addition, the methods that infringing sites will use to circumvent the Act – accessing sites directly by IP address, getting a new domain, changing DNS server settings – create a host of new Internet security issues.  So security risks will increase, yet the Act may not even be very successful in reducing copyright infringement.

Ambiguous, potentially arbitrary language

The PROTECT IP Act defines an infringing site in extremely broad terms.  Sites with “no significant use other than engaging in, enabling, or facilitating” pirated content would be subject to injunction.  “Enabling” and “facilitating” are extremely vague words: could YouTube be construed to enable copyright infringement?  This is especially dangerous because there is a private right of action as well.  Copyright holders would face no consequences for filing for an injunction against numerous allegedly infringing sites, which would undoubtedly harm a number of innocent sites.

Lack of due process

If the U.S. Department of Justice or any qualified copyright holder files for a court injunction and successfully proves that a website engages in, enables, or facilitates infringement, the website and its domain will be blacklisted immediately.  This could occur on the very same day that the complaint is filed, and doesn’t require that the owner of the site be given notice.  Without notice and a proper hearing, this effectively suppresses speech (potentially a significant amount, with entire domains being shut down) and falls very clearly under the definition of a prior restraint.  A prior restraint is constitutional only if the suppression of the speech would prevent catastrophic risk to the U.S. and its citizens (New York Times v. U.S.).  This unforgiving provision of the PROTECT IP Act has drawn comparisons to China’s great firewall in the way that content is censored in favor of domestic law concerns.

Undermines the Digital Millennium Copyright Act (DMCA)

The DMCA already exists to protect copyright holders from the same types of online infringement that the PROTECT IP Act aims to protect.  However, the PROTECT IP Act diverges in two significant ways.  First, the PROTECT IP Act forces service providers to take action and potentially be shut down in reaction to infringing sites, basically eliminating the DMCA’s safe harbor provisions, which relieve service providers from liability if their users commit copyright infringement.  Second, the DMCA has a well-articulated procedure for alleged infringers to receive notice and make objections to the takedown of their sites, the due process of which is also eliminated in the PROTECT IP Act.

Aside from Senator Wyden, the bill faces prominent opposition.  The Electronic Frontier Foundation (EFF), an organization that protects free speech in digital mediums, has recently begun a “Reject the PROTECT IP Act” campaign. Further, letters have been sent to Congress from distinguished groups of law professors and venture capitalists which outline some of the same potential flaws noted herein.  Predictably, the bill finds its support largely in copyright owning groups, such as the Motion Picture Association of American (MPAA) and the Recording Industry Association of America (RIAA).