New US Protect IP bill

[Steve]

At the moment, the US has something called the Combating Online Infringement and Counterfeits Act. This allows them to effectively remove a domain name from the Interwebz if that website is being used to do things that breach copyright laws. If you use torrent sites or those sites that allow you to stream newly released TV shows, you may have seen this in action.

 

Now the US are proposing a new bill called Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property, or Protect IP. The idea is that instead of wiping out the domain worldwide, American ISPs would have to remove the URL from their DNS records. DNS is the system that converts a URL that you type into your browser into an IP address, which then takes you to the website. If the DNS record is removed, you would no longer be able to view the site in the US. Good for us non-US folks, but this system is also flawed as there are all sorts of third party DNS services that you can use instead of your ISP's, so people would still be able to reach these sites anyway.

 

More info: -

 

The revised law's dangerous new provisions

 

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.

 

Setting dangerous and possibly illegal precedents

 

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.

 

Protect IP does not affect ongoing domestic domain seizures

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.

http://news.cnet.com/8301-13578_3-20062419-38.html

[d00ban]

Sounds like a ball ache for US folk, glad we're not there! I've often wondered why it's not illegal to post links as long as it's not hosted on your own site, seems crazy!

[Steve]

I've often wondered why it's not illegal to post links as long as it's not hosted on your own site, seems crazy!

Action never used to be taken against sites that did that, but now doing that can get your site shut down for promoting copyright infringement.