Review of Intellectual Property Law Blog

The PROTECT-IP ACT: Circumventing Free Speech in the Name of Old Revenue Streams

By Christian Miller on Wednesday, August 3rd, 2011
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My Chinese friends would look side to side before speaking, perhaps ensuring that a Party member was not within earshot, and wistfully call it “leaping the wall.” They were speaking of circumventing the Great Chinese Firewall, usually through VPN encryption. However, I called it a royal pain. In the first week of my two month stay in Beijing, I attempted to live in harmony with this draconian impediment to the free exchange of information. Attempting to access a social media or human rights website would often result in a 404, page not found error. I could have sworn I typed the address correctly. Disfavored websites that did not play ball with the Chinese censorship regime would be slowed by nebulous filters. One could search for Tiananmen Square on Google Maps, go to lunch, and return to find the page still loading. Sometimes the government’s censorship was more jarringly obvious. The commentary or blog sections of a news service site would be blotted out by a giant gray box of totalitarian might. An eye-pleasing, floral print censor block would have been nice. The Internet, beloved tool of borderless communication, was absolutely muddled by the Chinese government. Unfortunately, the U.S. and other western nations are headed toward a similar online experience.

I first learned of the PROTECT-IP Act (“the Act”) being introduced in the U.S. Senate during one of my Aeon Flux-esque back flips over the Great Fire Wall. This bill was introduced by Senator Leahy, whose top campaign supporters are large trademark and copyright holders such as Vivendi and Walt Disney. This overly-broad and under-thought bill, whose real name is “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011,” could not be more of a misnomer. While the bill claims to be protecting economic creativity, it is the result of lobbying by large copyright holders. These companies have been unwilling to change their business models in the Internet Age, and have rightfully been dying out—but not before mucking up U.S. IP laws. In fact, the Act is actually shoring up bone dry, out-dated revenue streams. Remember the good old days of coughing up $16.99 for a 40 year old Beatles album? Technological advancement has made this both a laughable and unsustainable business model. Yet the folks behind the Act would love to turn back the clock to a simpler and decidedly more expensive era.

Disingenuous acronyms aside, this piece of legislation threatens to once again limit free speech on the Internet in the name of property rights. The Act would grant a Court the power to excommunicate a website “dedicated to infringing activities” even before a final adjudication is rendered. Internet Service Providers (“ISPs”), online ad providers, and payment services would be required to essentially blacklist websites subject to the Act, even if notice has not yet been served upon the website owners. The end result could be a Domain Name System that is not globally uniform, as a website would be domestically invisible, and yet visible beyond U.S. borders. Given these flaws, it is of little surprise that a large contingent of law professors, including The John Marshall Law School’s own Professor Gruner, have spoken out against the Act.

One need only look to the Digital Millennium Copyright Act of 1998, or DMCA, to see similar lobbyist legislation affecting Internet speech. The DMCA allows a copyright holder to issue a warning to ISPs that the ISP is hosting potentially infringing content. Failure to remove such content, with such notice, could render the ISP liable for contributory copyright infringement. Fast forward a decade, and DMCA takedown notices have been utilized countless times to silence protected speech on the Internet. There are countless instances of speech, that is legally-protected as fair use of another’s copyrighted material, being silenced by fearful ISPs. It is not in the ISPs’ interest to extend their legal liability, and hence they continue to remove content even for bogus copyright infringement claims. This has resulted in a great chilling effect on otherwise socially-useful, legal, and most importantly, artistic speech on the Internet. For a particularly egregious example see: http://www.techdirt.com/articles/20110624/01393814836/kind-blue-using-copyright-to-make-hobby-artist-pay-up.shtml.

If I took away a single faux-jade trinket of wisdom from my time in China, it is that the government has no business monkeying with the Internet. The State’s Jitterbug cell phone-wielding octogenarian legislators and unaccountable administrative agents will never have the expertise required to both prevent Internet crime and ensure protected speech is not censored. Proposed laws like the Protect-IP Act are proof that no legislation will adequately achieve the lobbyists’ goals and avoid restraint on protected speech. What if a website is enjoined for the duration of a trial, only to be found not guilty of copyright infringement? Would this law not allow for unconstitutional prior restraints on speech, or an assault on the assumption of innocence until proven guilty? What if a torrent-linking website has a political discussion board at the bottom of the webpage, is the site “dedicated to infringing activities”? The term “dedicated to infringing activities” does not even jive with the basic concept of webpages—which are inherently dynamic.

Hollywood movie houses and dying record labels are using the executive branch as their private copyright goons. In a time where both France and Iran are considering building their own domestic Intranets (although for diametrically different reasons), the world looks to the U.S. to promote unmolested speech on the web. IP rights holders will always have an avenue of legal recourse in the courts of law. Granting them the services of executive branch henchmen and injunctions on speech is reminiscent of the concept of extra law in China. See Professor Fu Hualing’s explanation of extra law and the lovely extra extra law here: http://www.hrichina.org/crf/article/5422. IP rights are a gift bestowed by the state, an artificial monopolistic creation. They are subservient to the basic speech rights when the two come into conflict. This must never be forgotten, even by the Congressperson who has been plied with 20 copies of The Lion King.

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