Today, three U.S. Senators introduced the PROTECT IP Act (bill text), which would establish new mechanisms for combating “rogue” Internet sites that are dedicated to trafficking in counterfeit goods and/or distributing copyright infringing content. The PROTECT IP Act incorporates several changes that CEI suggested last year regarding COICA, a similar bill that was introduced unsuccessfully last year in the U.S. Senate.
Statement of Ryan Radia, CEI Associate Director of Technology Studies:
Congress deserves praise for its diligent efforts to tackle the problem of rogue websites. The PROTECT IP Act marks an improvement over its predecessor, COICA. While the new bill still raises some concerns, on net, it represents a more balanced approach to fighting online copyright and trademark infringement while respecting fundamental constitutional freedoms. The PROTECT IP Act is more carefully targeted to address truly bad actors, which reduces the probability of burdening protected expression through false positives.
The PROTECT IP Act’s requirement that in personam actions be commenced against a site operator prior to in rem actions is more protective of due process. On net, PROTECT IP is less likely to impose incidental burdens on protected expression than COICA, and more likely to allow website operators to successfully challenge illegitimate actions brought against them.
On the other hand, PROTECT IP’s voluntary actions clause, which may abrogate private contracts or terms of service agreements that would otherwise be enforceable, should be scrapped. Also, because the bill covers “interactive computer services” — including blogs, chat rooms, and many other online platforms – Congress should add a cost reimbursement section or explicitly exempt small entities.
As lawmakers consider the PROTECT IP Act in coming weeks and months, they should also revisit 18 U.S.C. § 2323, a civil forfeiture statute that DHS/ICE have used recently in seizing infringing domestic domain names. The law’s definition of websites subject to forfeiture is far too broad, and it lacks safeguards to ensure site operators have advance notice of the forfeiture action and an opportunity to be heard in court prior to the seizure.
For more about the PROTECT IP Act, see Ryan Radia’s analysis of the legislation on Technology Liberation Front: “Congress Takes Another Stab at Combating Rogue Websites with the PROTECT IP Act.”