Daley Blogs: The “PROTECT IP Act” – Hollywood Subsidy and Probably Unconstitutional

With good optics, a few Senators introduced an anti-Internet-piracy bill that is popular with Hollywood and the media, but vigorously opposed by law professors, Internet venture capital firms, entrepreneurs, free-speech advocates and even consumers shopping for prescription drugs outside the US.   

 

The bill authorizes the Justice Department to file a civil action against the registrant, owner, or site that accesses a foreign infringing Internet site, to  seek a preliminary order from the court that the site is dedicated to infringing activities and if the court issues that order, the Attorney General can compel U.S. third-parties ( Internet service providers, payment processors, online advertising network providers, and search engines) to halt access to the Internet site, or stop doing business with the site.

 

The bill is too blunt as it would block entire domains, not just an offending page or file.  Requiring Domain Name Servers to block access to offending sites is a security problem, and blocking can readily be side-stepped by using a proxy server or IP Address.  More troubling, the bill gives rights-holders a private right of action which will result in innocent Internet entrepreneurs being forced to shoulder operational and legal costs as they help rights-holders in pursuit of pirates.   In effect, legislators are taxing innocent parties with costs that arise from trying to sustain someone else’s defective business model.  Law professor opponents note that the Supreme Court says it’s unconstitutional to suppress speech without an “adversary proceeding”, and while the bill says a “preliminary order” is enough, it isn’t.  

 

In a weak Kabuki performance, the Recording Industry Association of America tried to conflate recent hacking attacks by LulzSec and Anonymous with the piracy issue this bill purports to address. 

 

Consumers do have a dog in this hunt.  None of us wants artists ripped off – that’s plain wrong.   Pirates and those who knowingly support pirates should pay the price / do the time.  But piracy cannot be fixed by short-changing due process for free speech, nor by loading Hollywood’s policing costs onto innocent parties as the PROTECT IP Act seeks to do.  Piracy is bad, but this law would be worse.  Two thumbs down.

 

Alan Daley is a retired businessman living in Florida.  He follows public policy issues from the consumer’s perspective

 

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