The Internet has breathed a collective sigh of relief; the MPAA (Motion Picture Association) commissioned expert Floyd Abrams to examine the Protect IP Act and evaluate its Constitutionality. As luck would have it, our suspicions and worries have been proven unfounded, and thanks to the entertainment industry's due diligence, the world is indeed safe for democracy. Have no fear everyone, the Protect IP Act is A-OK.
What a relief. Many bloggers, journalists and consumer advocacy groups were beating the war drums just last week, as news broke that COICA's little brother (or big brother), the Protect IP Act, was yet another attempt to censor the Internet and crush our First Amendment right to free speech. The MPAA was taken aback by this position - surely the entertainment industry and their lawyers would never thwart our freedoms in the interest of copyright enforcement, right? Of course not.
The entertainment industry hired Abrams to address the Senate Judiciary Committee and set the record straight, as bloggers were tainting the good intentions of the bill. From the MPAAâ€™s blog:
"The letter from Abrams, who has an extensive history in arguing constitutional cases before the Supreme Court, is in direct contrast to assertions made by a number of bloggers who have mounted a campaign against the bill, and seem more interested in protecting the rights of mostly foreign based rogue websites than the American jobs and businesses whose livelihoods are placed at risk by the illegally obtained content being marketed on these sites."
Many of the biggest criticisms of the bill revolve around three main points: 1) its ineffectiveness, 2) the potential to stifle free speech, and 3) the lack of due process protections. Abrams' letter attempts to address these issues - and admittedly does a good job in justifying the existence of the Protect IP Act. But there's the theoretical legal world, and there's the real world.
Unfortunately, Abrams' letter does little to address to issue surrounding the latter category.
There also seems to be a fundamental disconnect between the arguments being lobbied against the Protect IP Act and the rebuttal made by the entertainment industry. The core of the MPAAâ€™s argument (and indeed Abrams') contends that those against the Protect IP Act are simply acting in the interest of foreign websites that infringe on the copyrights of others. This is in no way true - in fact, quite the contrary. There's nothing wrong with protecting copyrights or the creative works of others, and the opposition has no interest in dismantling the protective laws surrounding creative or intellectual property. Our problem is with the lack of due process.
Although Abrams' letter does help address the critical issue of whether a court order must be obtained prior to a legal action against a website, a massive issue still remains: abuse of the system.
The way the Protect IP Act is currently written, one of two entities can initiate legal action against a suspected infringing website - the Department of Justice on the behest of a copyright owner, or, if the copyright owner doesn't want the hassle of dealing with the DoJ, they can just do it themselves. We like the idea of the DoJ being exclusively involved with the process, since it adds an extra layer of "are you nuts?" factor into the equation. The private option lacks this, and is ripe for abuse.
Sure, the Act is designed to protect copyrights, but Slyck.com is no stranger to the abuse of the law. The private option of the Protect IP Act is dangerous, and indeed can and will infringe on free speech â€“ our problem with it has nothing to do with wanting to protect foreign infringers. Although there is a legal process involved with the private option, where a court has to approve any kind of DNS blocking, who is to say that copyright owners wonâ€™t take the same abusive Gatling Gun approach to foreign websites as they have to alleged BitTorrent infringers?
Just because there's a thin veneer of judicial oversight to the private option doesn't make this potential law any better. It will then be incumbent on the accused to prove their site isn't infringing, an effort that could be costly to a site that doesn't have the financial means to protect itself. What if copyright holder â€œAâ€ doesnâ€™t like what website â€œBâ€ writes about? Well, why not just use the Protect IP Act to block said website from resolving in the US? Once this happens, our right to Free Speech, and Abrams' well formed arguments, go right down the toilet.
Until the entertainment industry understands the concerns of netizens and separates those concerns from the unfounded desire to protect foreign websites that infringe on copyrights, the debate on the Protect IP Act will go nowhere.