Senator Patrick Leahy recently introduced the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property” or “PROTECT IP” bill. This bill, while somewhat less draconian than COICA, is still problematic for web hosts, and providers of Internet infrastructure. Rather than dissect the bill line-by-line, the purpose of this post is to point out how this bill will create problems for the Internet infrastructure industry. Links to blogs that discuss the bill in more detail are at the end of this post. While there are some improvements in this bill, it is still fundamentally flawed, and very dangerous to internet infrastructure providers.
So is this bill better than COICA? First, gone are the “star chamber” like tribunals in which owners of intellectual property would be allowed to present evidence to the U.S. Attorney General to secure secret take downs of sites that are alleged to infringe their intellectual property rights. In its place is a more traditional system in which the Attorney General is empowered to secure temporary restraining orders and other extraordinary remedies against domain names and websites that are alleged to infringe another entity’s intellectual property.
Along with this, the bill adds some transparency into the process by specifically requiring the Attorney General to at least attempt to provide notice to the owners of the targeted domain names and sites, and not restricting the communications from service providers to those domain names and sites. However, one aspect of the bill does give the Attorney General the right to determine the text that will be displayed at the offending domain name, or on the site.
Unlike COICA, this bill does provide some safe harbors. The domain name seizure, website, operator, and even the limited private right of action provisions, insulate the recipients of issued orders from further liability when they comply with validly issued orders. So, for example, if a registrar receives an order requiring it to disable a domain name, the owner of the domain name cannot sue the registrar because the domain name has been disabled.
Finally, Sen. Leahy jumped aboard the “cool acronym” wagon that is all the rage on the Hill. Now we know how to pronounce his bill.
So what’s bad about the bill? First, the bill is completely riddled with undefined terms and “weasel words.” This is a fatal flaw. The bill, passed as written, will lead to years of litigation. One need only look at the use of the word “expeditiously” to describe the speed at which compliance must occur. More than 10 years after the DMCA has passed, there is still weekly litigation on what this word actually means.
Hosts, quite honestly, are likely to be the first targets of litigation stemming from undefined terms. Throughout the bill the phrase “or persons operating in concert” with the owner of the infringing material is used. If there is one thing we do know about the owners of intellectual property, they believe in their hearts that web hosts, simply because they are providing services to infringing entities, are “acting in concert” with the infringers. Given the fact that there is a private right of action in this bill, and, as noted below, no safe harbor, it is reasonable to assume that hosts will be targeted for the activities of their users soon after the bill is enacted.
Second, most of the Internet infrastructure industry, other than the domain name industry, is completely missing from the bill. The bill operates as if domain names, search engines and financial services providers are the only members of the Internet industry who need to be called out by name, and protected. Simply put, the bill has specific provisions setting out what those entities must do in order to comply with a court order. It is likely that in the inevitable litigation that comes from this bill, the courts will point to this specificity as a means to limit liability. On the other hand, hosts, merchant processors, ISPs and other necessary parts of the Internet are not discussed. Courts will be required to interpret how the bill applies to those entities since they are not specifically mentioned.
Further, it allows the courts, Attorney General, and intellectual property owners to determine what measures should be taken to comply with the law. Orders issued to registrars, search engines and credit card processors must be technologically feasible and economically permissible. However, for entities not specifically mentioned in the bill, only after an order is issued is the subject of that order allowed to present these arguments, and both must be present. This means that, for example, a host must hire an attorney and demonstrate that whatever remedy a court has prescribed is both technologically infeasible and economically prohibitive. The cost and detail of doing so is likely to cause hosts to simply comply.
Finally, unlike the DMCA there is no safe harbor for the activities that are covered by the bill. The fact that this is missing is one of the most “dishonest” things that the drafters of the bill have done. Looking at the bill, it has, at least three immunity provisions. The drafters are likely to point at those to address claims that there are no safe harbor provisions. However, the safe harbor provisions that are there are quite artfully drafted. The safe harbor provisions only operate one way: the subject of a court order cannot be sued by their customer for taking the action ordered by the court. This is a pretty weak safe harbor. In almost every circumstance, there is no liability to a business if it complies with a validly issued court order. So in essence, this is not a safe harbor at all.
Contrast this with the safe harbor in the DMCA. The DMCA gives safe harbor for everything it covers. So, an intellectual property rights holder cannot sue a host for contributory infringement if the host complies with the DMCA. The PROTECT IP bill contains no such safe harbor, or more appropriately, pre-emption, provision. In essence, IP owners not only get the benefit of the bill, but if they decide it’s not convenient, or if, as is more likely, courts do not interpret it in their favor, they will simply start suing.
So what can you do? Based on what I’ve read, it’s unlikely that this bill will survive in its present form. It is simply too poorly drafted. This gives interested parties the ability to modify it so that it is more palatable. However, it is likely that this bill, in amended form, is going to make it through Congress. This means that some action must be taken.
I suggest that hosts and other internet infrastructure industry entities at a minimum, contact their Senators and discuss these problems. Summer is coming up, and most Senators will be in their districts meeting with constituents. Set up a ten minute appointment to meet with your Senator and let him know how this bill will affect you. Most Senators have only heard the oft repeated story of how much infringement is going on on the web. Few have heard how the remedies proposed by intellectual property rights holders may significantly impact other industries. Meeting with your Senators will go a long way to educating them that this bill, in order to ensure the continued viability of your business, must be modified.
Further reading:
Forbes: why the Internet content wars will never end.
EFF: COICA Redux
TechDirt. Discussion of effect on DMCA Safe Harbors
BBC: Americans Face Website Blocking.
Variety: Protect IP Act aims to stop piracy.
About David Snead
David Snead is a lawyer whose practice is focused on internet infrastructure providers. In his eleven years in this practice, he has represented clients including multinationals, middle tier hosting companies, and two guys, a server, a T-1 and a huge MasterCard balance.
A long-time WHIR contributor, David Snead is the Web hosting business's best-known legal expert. Through his WHIR blog, he offers a credible legal perspective on both specific actions in the Web hosting business and general developments in legislation.
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