Copyright infringement and anti-piracy legislation seems to be all the rage these days. A draft of the PROTECT IP act, provided to Ars Technica by a source in Washington, appears to be even more extreme than it’s parent bill, COICA.
COICA (Combating Online Infringement and Counterfeits Act) which failed to pass last year, proposed to allow the Justice Department the power to declare a website “rogue” and obtain a court order forcing third parties to censor that site. PROTECT IP takes this concept a step further, not only allowing the Justice Department the power to force censorship of a site but also giving the rights holders themselves the right to take action.
PROTECT IP’s “private right of action” states, “The Act similarly authorizes a rights holder who is the victim of the infringement to bring an action against the owner, registrant, or Internet site dedicated to infringement, whether domestic or foreign, and seek a court order against the domain name registrant, owner, or the domain name.”
The bill goes far enough to declare that the court’s permission would be needed for the rights holders to serve such an order and it would really only apply to ad networks and payment processors (think Google and Mastercard). The rights holders would not have the ability to take action against ISPs and search engines but the Justice Department’s court order would include them.
One of the most interesting differences between COICA and PROTECT IP is that while both would require third parties to block service to offending websites, under PROTECT IP search engines would have to completely censor the “rogue” sites from their index. It goes so far as to pressure search engines, payment processors, ISPs, and ad networks to take unilateral action against potentially infringing sites without a court order. Essentially this gives Google the power to determine if a site is infringing on a copyright and cease to allow advertising for that site or index it in their search engine and still be protected by the law. What’s more the bill states that access sites which “endanger the public health” (i.e. online pharmacies) be completely cut by everyone; domain registrars, payment processors, search engines, and even ISPs.
PROTECT IP claims a number of safeguards will exist but the main issue is that every one of those “safeguards” would come into play after the guilty-until-proven-innocent action has already been taken. This means that only after the court order is obtained (either by the rights holder or the government) and all third parties have been asked to censor the site, can the site petition to invalidate the order. The site gets no say in the process until judgement has already been rendered and punishment doled out. This gives such a huge amount of power to the rights holders and even service providers without a second look by the government, until the censored site complains.
After the COICA bill failed to pass many expected the next iteration to be less broad and sweeping. PROTECT IP actually manages to give more power to not only the government but also the rights holders and even third party service providers. If this bill passes it will take a mere accusation of infringement by a third party to deny any and all services to any site.