On 06/15/2011 08:21 AM, plainolamerican wrote:
Proposed U.S. Law Would See Websites Shut Down On Just An Accusation Of Copyright Infringement ---- this is the same kind of law that allows the RIAA to sue people for downloading songs, presuming that they don't already own copies of the songs if it weren't for their lobbyists in dc they wouldn't be able to get away with it our copyright and patent laws need a severe overhauling On Jun 15, 9:32 am, Jonathan Ashley <jonathanashle...@lavabit.com> wrote:*A Proposed U.S. Law Would See Websites Shut Down On Just An Accusation Of Copyright Infringement* by James Plotkin Law student, University of Ottawa; freelance journalist; musician. First Posted: Jun 14 2011 07:11 AM On May 12, in a rare show of bipartisan co-operation, Senators Patrick Leahy (D-Vermont), Orrin Hatch (R-Utah), and Chuck Grassley (R-Iowa) introduced a bill entitled Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, also known as the Protect IP Act. The stated goal of the legislation is quite simple: to protect the economic interests of American intellectual property owners from theft and piracy online. Shortly after the bill was tabled, Sen. Ron Wyden (D-Oregon) used his power to put a temporary hold on the legislation. In his estimation, the act, as worded, would have the undesired effects of limiting free speech and negatively impacting e-commerce. In a press release on the issue, Wyden said: "At the expense of legitimate commerce, [the bill's] prescription takes an overreaching approach to policing the internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the internet." The senator's appraisal of the bill is quite accurate. As written, the Protect IP Act gives the attorney general and private intellectual property holders the power to not only sue owners and operators of U.S.-based websites, but to execute what is known as an in rem action -- essentially an action against property without involving the owner -- against websites where the owner is not American or cannot be located. One of the tools the Protect IP Act would give rights holders is the ability to prevent the U.S. public from accessing websites that are believed to be violating intellectual property rights. Access to websites being challenged in a lawsuit under this law would be restricted at the ISP level. This will obviously put an additional strain on ISPs -- one the government won't reimburse them for. The Electronic Frontier Foundation, a non-profit digital-rights organization, warns that the bill's definition of "domain name system" is too broad and could easily be interpreted to cover such things as personal and corporate email clients, routers, and even operating systems. It should be noted that such interpretations, if ever made, would be left to the courts. That being said, powerful IP rights holders tend to hire pretty good lawyers. Many critics of the legislation, including the EFF, warn that allowing individual IP owners to block access to websites will limit the ability of site owners to defend themselves before a judgment is rendered. The foundation points out that this is ostensibly an offence to due process. The bill vests plaintiffs with the powers of restraining orders, preliminary injunctions, and injunctions to enforce their rights against non-domestic domain owners so long as their service is being used by Americans and the service "harms holders of United States intellectual property rights." Two other major groups are affected by the legislation: online financial transaction providers (most notably PayPal) and online advertising services. E-commerce providers would be forced to stop all payments and transfers of funds being made to or by American customers located in the U.S. when given an order to do so. Online ad companies would be forced to immediately stop doing business with any site listed in the order. The bill says this must be done "expeditiously," once again at the cost of the service provider. I share Senator Wyden's views on the legislation. Even though the cause might be noble, it could produce broad and overarching undesirable effects. First, the targets of this legislation are entities "dedicated to infringing activities." Although the U.S. Supreme Court has rendered decisions on the subject, this law, if passed, would likely cause a flare-up in the debate on what is and isn't "dedicated to infringing activities." Second, the fact that any IP owner can obtain a judgment in rem against a website so long as "due diligence" is completed in attempting to identify the domain owner is a little far-fetched. If nothing else, it disrupts due process and what most legal systems refer to as audi alterem partem, a principle of fundamental justice that means "hear the other side" -- essentially the right to plead one's case and make arguments against the other party's assertions. What if a website owner is out of the country or otherwise indisposed when a plaintiff is supposedly trying its best to locate the owner? Third, it's my belief that this bill could ultimately come to cover not only the infringing material at the front end or service level of the site (e.g., streaming of pirated TV shows or movies), but the software used at the infringing website as well. For example, a company that owns patents or copyrights on a web player or its supporting software and that believes its player is being used by a site would be able to avail itself of the remedies contained in the law. It wouldn't technically matter if the content on the players is infringing if the alleged use of the player on the website infringes someone's software patent or copyright. Finally, and perhaps most importantly to the average American, I fear that the additional economic burden sustained by ISPs and e-commerce providers could ultimately be transferred onto the backs of consumers. It would be unreasonable to assume that these corporations, in an act of benevolence, would bear these additional costs that do nothing but subtract from their bottom line. It remains to be seen if Congress will scrap the bill, retool it, or carry on with the legislation in its current form. Although the United States (and Canada, for that matter) may require up-to-date legislation that addresses the reality of online pirating, one can only hope that the final product will try to achieve those goals with more finesse than the current version of the Protect IP Act. -- Freedom is always illegal! When we ask for freedom, we have already failed. It is only when we declare freedom for ourselves and refuse to accept any less, that we have any possibility of being free.
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