A new piece of legislation is poised to address the cries made by music and movie companies that piracy is the largest cause of financial harm to their respective industries. It is called the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (”PROTECT IP Act”) and is said to address issues related to piracy and copyright infringement, but many suggest it may go too far.
The PROTECT IP act states that “[c]opyright infringement and the sale of counterfeit goods are reported to cost American creators and producers billions of dollars and to result in hundreds of thousands in lost jobs annually. This pervasive problem has assumed an especially threatening form on the internet.” While it focuses on websites that are not registered in the US and has garnered some wide-spread support in Congress, the bill does not includes specifics about what constitutes an infringing website.
The bill seeks to take the penalty for alleged infringement well beyond even that of the Digital Millennium Copyright Act (”DMCA”). A properly prepared DMCA notice can force an internet service provider or hosting company to block access to a website unless the recipient of such notice resolves the alleged issue or provides counter-notice that they believe there is no infringement. The PROTECT IP Act allows a copyright holder to allege infringement to request a court ordered injunction. Once obtained, not only must a site be blocked by a service provider but all sites which link to such site must be blocked and search engines must censor their results to remove any alleged offending websites. The goal is to make infringing sites invisible and disappear as if they did not exist.
While I have no doubt that enacting and enforcing such legislation could be another major blow to those who have built a business around piracy, these measures are draconian and likely take enforcement too far. Since no notice is required to be given to the alleged offender under this Act, there may be issues of free speech and there will be websites that have not violated any IP laws who find themselves surprisingly shut down for months trying to resolve the matter in court.
Much like the DMCA has been abused in the past for political and business gain, this legislation goes well beyond entertainment media and provides an opportunity for competitors to find something small that could be in violation of IP laws and effectively put them out of business until a resolution can be made. It is surprising that this legislation may pass following the research conducted by the government accountability office that there was no substantiation of the losses claimed by the music and movie industries, in fact there were also many benefits to the industry through wider dissemination of material.
If this bill does see the light of day, I hope some additional penalties will be put in place to deter people from making false allegations. Claims that the sky is falling from entertainment media have come and gone since cassettes and video tapes entered the market in the late ’70s and the industries have survived and thrived. While the largest corporations producing such material may have issues continuing to generate the level of profits they once enjoyed, much of that can be attributed to the ease with which independent artists can record their own high quality audio and video.
Here’s to hoping the government gets it right and doesn’t just take the media industries on their aggressive, deep-pocketed, self-serving word.
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