COICA Is Dead, Long Live the PROTECT IP Act

Posted Thursday, May 12th, 2011 at 8:34 pm

And by “long live the PROTECT IP Act”, I really mean, “let’s kill the PROTECT IP Act, as quickly and as dead as possible”.

[Update: At least one petition to the US Congress opposing this bill can be found at Demand Progress; I will update with others as I find out about them.]

Back when COICA was winding its way through legislative committees, Representative Zoe Lofgren (D-CA) gave an interview to Ars Technica, in which she said:

I was in the Congress when we did the Digital Millennium Copyright Act. [The content industry] wanted to go farther; at one point, the original draft outlawed Web browsing, which I thought was interesting. We did the bill, and they’re complaining. It’s what they wanted, but it’s not enough. Now they want to do something else, which is really pretty draconian

Rep. Lofgren also predicted that “if this passes, in a couple years they’ll come back with something even more draconian.” She was mostly right: Even though COICA was killed before reaching a floor vote by Senator Ron Wyden (D-OR), they’re back with something more draconian anyway.

As Wired notes, PROTECT IP, like COICA, would force credit card companies, ad networks, and DNS server to enact the appropriate form of shunning or blackholing against sites deemed “infringing”. Credit card companies could no longer process payments for the site; ad networks could no longer serve ads to them, and DNS providers would have to cease resolving their IP addresses. But PROTECT IP goes further, requiring search engines to censor their own listings.

Wired does a good job of connecting the dots here; as they say:

Last week, when the Department of Homeland Security leaned on Mozilla to remove a Firefox add-on making it simple to bypass domain name seizures, we wondered at the request. After all, the add-on only made it easier to do a simple Google search, and we wondered “what the next logical step in this progression will be: requiring search engines to stop returning results for seized domain names?”

Turns out that’s exactly what’s being contemplated.

In addition to forcing search engines to become censors, the bill also gives copyright holders a “private right of action” — a phrase that should chill the blood of anyone who intends to run any Internet site of any kind, because of the potential for mischief it embodies. It means that anyone who has or asserts a copyright could get their own, direct, court order to label a site “infringing” and have it blocked. They wouldn’t have to ask a DA or the Justice Department to go to the courts for them.

Does that sound ripe for abuse? You’re not the only one who’s noticed. As far back as April 6th, Google’s Kent Walker testified before the House Judiciary Committee that a private right of action “would invite suits by ‘trolls’ to extort settlements from intermediaries or sites who are making good faith efforts to comply with the law.” Another way of putting it is: If you thought DMCA takedown claims have been overreaching, getting dubious, or flat-out fraudulent, then you ain’t seen nothing yet.

But aside from giving anyone who owns (or claims) a copyright the ability to file a court order and get any site they dislike shut down immediately, the PROTECT IP Act also encourages search engines, ad vendors and credit card processors to pre-emptively cut off anyone they think might be an infringer. If they “voluntarily”” cut off a site because they have (or claim) “a reasonable belief that the Internet site is dedicated to infringing activities”, they’re held blameless (and indemnified against damages in any suit by the poor slob whose contract just got violated).

In other words, the government is trying to make it so that risk-averse corporations will do their dirty work for them, taking a “better safe than sorry” approach when it comes to banishing their own clients from the Internet.

Oh, and of course, the idea of “infringement” is one that goes almost completely unexamined. Feel free to search the entire text of the bill. There is nary a mention of Fair Use, the parody/satire exemptions, 17 U.S.C. § 107, or of any other text string that might seem relevant. (Oddly, it doesn’t seem to be quite the same text that Wired was working from; their article has at least one quote that I can’t find in Scribd’s text. Not that Scribd’s search feature is even half as useful as bare eyeballs. But the general sentiment seems pretty much the same.)

Before I wrap up: Major kudos to Senator Ron Wyden and Representative Zoe Lofgren for their efforts to stop the original COICA. I spend a lot of time calling out bad actors in this blog; I’m happy when I get to congratulate someone who’s doing good. For the same reasons, kudos to the Mozilla Foundation for refusing the government’s request to censor the MafiaaFire Redirector plugin.

But for the people behind this new bill? Nothing but shame, blame, raspberries — and hopefully, a swift removal from office. The agenda (for Americans, at least) is clear:

  1. Contact your legislators and urge them, in no uncertain terms, to reject this bill. Not to compromise on it or try to water it down, but to kill it dead.
  2. Find out who is sponsoring this bill, and vote them out of office as soon as they come up for re-election.
  3. Finally, start a movement to pass legislation that would counteract Citizens United v. Federal Election Commission. Especially after the outcry against COICA, this bill is a slap in the face to individual voters — and a gift to the corporate monoliths who obviously paid handsomely for it. This corporate meddling in politics has gone far enough, and will only get worse until we roll back the trend of excessive monetary influence over our legislators.

Outside the US? I wish I could say that you could make a difference to this struggle somehow, but honestly, I doubt it.

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