Last year, Sen. Patrick Leahy (D-VT) put forth The "Combating Online Infringements and Counterfeits Act" (COICA), which was purported to protect copyright holders from having their content stolen and propagated on the Internet, but which had a number of other provisions that could limit the use of the Internet. That bill was killed. So what do we have this year? "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011," or "PROTECT IP" -- which, while it addresses some of the problems in last year's bill, adds some even worse ones, critics say.
Stop the Pirates
The target of both bills is purported pirate sites that contain copyrighted content such as music, movies and television programs. And of course, copyright owners have the right to go after people who steal their work. COICA worked mainly by allowing the government to seize the domain names of sites considered to be pirate sites.
The problem, according to critics such as the nonprofit Electronic Frontier Foundation (EFF), is that of unintended consequences. For example, if either of these bills had been law, Viacom could have shut down YouTube a few years back because it had copyrighted material on it, even though the site hadn't put it there. Moreover, such bills, if passed into law, could be used against many non-pirate sites as well, and even be used against political speech.
What's in PROTECT-IP
PROTECT-IP has several new features that go even further than COICA, the EFF says.
Private Right of Action
First, PROTECT-IP now includes a private right of action, meaning that corporations -- as well as the government -- can seek injunctions against websites. Websites such as YouTube are currently protected by the "safe harbor" provision of the Digital Millennium Copyright Act; this would abrogate that. In other words, if Viacom had an issue with YouTube posting its content, instead of asking YouTube to take down the offending content, it could just shut the site down.
Limiting Search Engines
Second, the bill now includes language that could limit the ability of search engines, and even social media sites such as Facebook and Twitter, to link to sites considered to be infringing.
Not Far Enough & There's Loopholes
Two changes were made that appear to be intended to address concerns about COICA, but, the EFF says, they are so minor as not to be particularly helpful, especially combined with the new provisions. First, the new language no longer requires explicit action on the part of domain name registries and registrars -- but the government can circumvent that by simply seizing domain names, as it has been doing with a variety of providers including online poker and file-sharing sites.
Second, the bill now requires any potential plaintiff -- whether it's the government or an IP owner --to make some attempt to identify a person or entity in connection with the infringement before proceeding against the domain name itself. Thank goodness for small favors. But there's a loophole here, too, according to TechDirt, which broke the story:
It says that if either the Attorney General or the copyright holder "was not able to find" the registrant or owner of the site or "no such person found has an address within a judicial district of the United States," then they can skip the whole in personam action and jump straight to the in rem action, against the website itself. That's a pretty big loophole."
TechDirt also adds that the bill has the effect of extending liability to sites such as search engines, and, worse, creates the chilling effect of encouraging third-party providers to shut down sites thought to be infringing, without any remedy for such sites, by providing liability protection for such actions.
In other words, pretty much any domain can be disappeared by its register or registrar with little real recourse, and, in fact, there is encouragement for this to happen."
Politically, the law could be used to shut down sites that publicize things politicians say by claiming copyright infringement on, for example, a political speech.
You thought Google's content farm algorithm change was a problem for the Internet? Imagine what this bill could do.