PROTECT IP Act: Workers vs. Wyden?

by Howard Gantman 05/27/2011 08:37 (UTC-08:00) Pacific Time (US & Canada)

When it comes to protecting creative expression in America, where do our leaders stand?  Some of the answers may surprise you.   

Yesterday, U.S. Senator Ron Wyden (D-OR) announced a plan to obstruct the PROTECT IP Act, a bipartisan bill sponsored by Senate Judiciary Committee Chairman Patrick Leahy (D-VT), leading Judiciary Committee Republicans Orrin Hatch (R-UT) and Chuck Grassley (R-IA), and 13 other Republicans and Democrats, which was approved yesterday – unanimously – by the Judiciary Committee. 

Senator Wyden has stated that he will try to prevent the full Senate from debating or voting on this critical legislation,  claiming that it would “muzzle speech and stifle innovation and economic growth.”

We respectfully disagree – and so do American workers.  In a recent blog post, the AFL-CIO, which represents 12.2 million working men and women in this country, praised the PROTECT IP Act, saying it would preserve jobs and strengthen intellectual property rights. 

As AFL-CIO President Richard Trumka wrote:

The economic well-being of workers in the United States—jobs, income, and benefits—turns more and more on our protecting the creativity and innovation that yield world-class entertainment, cutting-edge and sustainable manufacturing and construction, and disease-ending pharmaceuticals. In a tough economic time, the PROTECT IP Act will help to protect U.S. workers and consumers against digital thieves and counterfeit scammers.

Paul Almeida, President of the AFL-CIO Department of Professional Employees (DPE), added:

Digital theft costs the arts, entertainment, and media industries billions of dollars and hundreds of thousands of jobs. For these skilled professionals, online infringement is wage theft.

The PROTECT IP Act will also be an important safeguard of free speech.  As Constitutional expert Floyd Abrams has written:

It is one thing to say that the Internet must be free; it is something else to say that it must be lawless.  Even the Wild West had sheriffs, and even those who use the Internet must obey duly adopted laws. …

Copyright violations are not protected by the First Amendment … [The PROTECT IP Act] does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.

The truth couldn’t be clearer.  Foreign based rogue websites that steal and sell or give away American movies, TV shows, and other creative products endanger jobs, cut into our GDP, and put the consumers who use them at risk of identity theft or credit card fraud.  

We know where we stand, and we know where the 16 bipartisan sponsors and co-sponsors of the PROTECT IP Act stand: with the millions of Americans working in entertainment, the arts, and media whose jobs are threatened by content theft.  Where does Senator Wyden stand?

Studios Seek Order Enjoining Infringing Zediva Service

by Ben Sheffner 05/26/2011 14:53 (UTC-08:00) Pacific Time (US & Canada)

Today the MPAA's member studios asked a federal court to order the operators of the unlicensed video-on-demand service Zediva to stop their infringing activities. Our motion for a preliminary injunction argues that Zediva violates the studios' exclusive right to "publicly perform" their works under Section 106(4) of the Copyright Act. And it refutes Zediva's false, self-serving description of itself as a "rental" service. As the introduction to our motion states:

Defendants are blatantly violating the Studios’ exclusive right to publicly perform their copyrighted works.  Defendants use Internet streaming technology to transmit performances of the Studios’ movies from DVD players at their data center to their customers around the country.  The Copyright Act, however, gives the Studios — not Defendants, and not anyone else — the exclusive right to publicly perform their works.  17 U.S.C. § 106(4).  Defendants do not have authorization from any Studio to publicly perform their movies.  That is copyright infringement, pure and simple.  This Court can and should enjoin it.

Our motion is scheduled to be heard before Judge John Walter of the Central District of California on July 25.
 
The studios sued Zediva's corporate owners and founder and CEO on April 4. As Dan Robbins, the MPAA's Senior Vice President and Associate General Counsel, said when we filed the lawsuit, "When legitimate companies stream movies to their customers, they pay license fees to the copyright owners, enabling content providers to invest in new products and services that pay writers, set builders, wardrobe designers, and countless others who contribute to a movie production. Companies like Zediva profit off creators without paying them what is required by the law.” Here is the MPAA's set of FAQs on the case.

Canada, China, Russia, Spain and Ukraine on Congressional Watch List for Content Theft

by Greg Frazier 05/26/2011 10:30 (UTC-08:00) Pacific Time (US & Canada)

I was on Capitol Hill this morning for the Congressional International Anti-Piracy Caucus (IAPC)’s unveiling of its “2011 International Piracy Watch List,” which flags countries where content theft is particularly egregious.  

Senators Sheldon Whitehouse (D-RI) and Orrin Hatch (R-UT) and Congressmen Bob Goodlatte (R-VA) and Adam Schiff (D-CA) lead the IAPC, which is committed to protecting American intellectual property and reducing the scourge of content theft abroad.

Theft of American movies, television shows, and other creative content in these countries and around the world costs tens of billions of dollars and jeopardizes the livelihoods of more than 2.4 million stagehands, makeup artists, actors, costume and set designers, truck drivers, architects, directors, accountants, and others who make up America’s creative community.

As more and more people watch and enjoy creative works online, America and its partners abroad need to increase domestic and international efforts to protect those works from theft. We thank Senators Whitehouse and Hatch and Congressmen Schiff and Goodlatte for recognizing the serious threat of digital piracy and for shining a much-needed spotlight on those places around the world where America’s creative works are most at risk. We will continue to work with the IAPC and its members to promote copyright protection and the enforcement of intellectual property rights.

It’s fitting that the IAPC’s announcement comes on the same day that the Senate Judiciary Committee unanimously passed key legislation aimed at preventing content theft by cracking down on rogue websites that sell or distribute stolen creative works. Legislation like the bipartisan PROTECT IP Act sends a strong signal that the United States is committed to tough but smart action against those who try to profit from stolen intellectual property.

You can read our full press release online here.   

Read more reactions to the report from the Business Software Alliance, National Music Publishers’ Association, Copyright Alliance, and the Recording Industry Association of America.

PROTECT IP Act Clears Key Hurdle in Senate

by Howard Gantman 05/26/2011 10:23 (UTC-08:00) Pacific Time (US & Canada)

The Senate Judiciary Committee has unanimously approved the PROTECT IP Act, sending it to the full Senate for a vote later this summer. 

This is a key step forward for this bill and a big win for the millions of Americans in the creative sector whose hard work is stolen every day by rogue websites overseas.  Here’s Michael O’Leary’s statement from our press release:

“The Judiciary Committee took an important step today to stop theft and save jobs.  By helping shut down rogue websites that profit from stolen films, television shows, and other counterfeit goods, this legislation will protect wages and benefits for the millions of middle class workers who bring America’s creativity to life. 

“We thank Chairman Leahy, Senators Hatch and Grassley, and all the cosponsors for their work and support today and we look forward to continuing to work with the Senate and the House to ensure that the final legislation passed by both chambers and presented to the President provides adequate online protection of the American film and television community.”

Read our full release here, which also includes statements from leaders of The Independent Film & Television Alliance® (IFTA®) and the National Association of Theatre Owners (NATO).

Also check out Chairman Leahy’s press release and statement on the bill here.

Movie Thieves Feel the Heat

by Jessica Garcia 05/26/2011 09:18 (UTC-08:00) Pacific Time (US & Canada)

As the summer months approach and movie goers eagerly anticipate this year’s blockbuster films, the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) continues to crack down on websites selling counterfeit goods and copyrighted materials.

ICE is now in the fifth stage of “Operation In Our Sites,” an ongoing effort to seize the domain names of websites used to sell counterfeit goods and copyrighted materials. During the course of the operation, ICE HSI agents investigate websites suspected of illegal activity within the United States. If the materials sold or distributed by the website are found to be counterfeit or illegal upon inspection, the website domain names are then seized by federal authorities. Since the launch of “Operation In Our Sites” in June 2010, ICE HSI and the IPR Center have seized 125 domain names, seventy-six of which have now been forfeited to the U.S. Government.
 
These websites not only violate intellectual property but place Americans in danger of purchasing faulty and dangerous products and cost the American economy billions of dollars annually.

We applaud ICE’s continued efforts to protect the United States economy and the more than two million people who work in and count on a thriving movie industry.

View complete ICE bulletin here.

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Constitutional Expert: ‘Copyright Violations Are Not Protected by the First Amendment’

by Howard Gantman 05/24/2011 16:06 (UTC-08:00) Pacific Time (US & Canada)

Floyd Abrams, a noted constitutional expert and defender of the First Amendment, today wrote the Senate Judiciary Committee, and firmly declared that there is no First Amendment right to steal creative content and distribute it on the Internet through rogue websites.

In his letter, Abrams defended the Constitutionality of the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (the PROTECT IP Act) and said the bill was needed to help stem the theft of American intellectual property that costs “American creators and producers billions of dollars per year,” and results in “hundreds of thousands of lost jobs annually.”

The letter from Abrams, who has an extensive history in arguing constitutional cases before the Supreme Court, is in direct contrast to assertions made by a number of bloggers who have mounted a campaign against the bill, and seem more interested in protecting the rights of mostly foreign based rogue websites than the American jobs and businesses whose livelihoods are placed at risk by the illegally obtained content being marketed on these sites.  He writes:

“It is no answer to this challenge to treat loose metaphors—the Internet as ‘the Wild West,’ for example—as substitutes for serious legal analysis.  It is one thing to say that the Internet must be free; it is something else to say that it must be lawless.  Even the Wild West had sheriffs, and even those who use the Internet must obey duly adopted laws.”


In concluding that the bill passes constitutional muster, Abram’s responded directly to criticisms of the bill that have been raised:

“First, there is a recurring argument that the United States would be less credible in its criticism of nations that egregiously violate the civil liberties of their citizens if Congress cracks down on rogue websites. Second, there is the vaguer notion that stealing is somehow less offensive when carried out online.

“I disagree.  Copyright violations are not protected by the First Amendment.  Entities ‘dedicated to infringing activities’ are not engaging in speech that any civilized, let alone freedom-oriented, nation protects. That these infringing activities occur on the Internet makes them not less, but more harmful.  The notion that by combating such acts through legislation, the United States would compromise its role as the world leader in advancing a free and universal Internet seems to me insupportable.  As a matter of both constitutional law and public policy, the United States must remain committed to defending both the right to speak and the ability to protect one’s intellectual creations.  This legislation does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.”


Abrams is a partner at Cahill Gordon & Reindel LLP  who is representing the Directors Guild of America, the American Federation of Television and Radio Artists, the Screen Actors Guild, the International Alliance of Theatrical and Stage Employees, and the Motion Picture Association of America.  He noted that the PROTECT IP Act does not address all types of infringement online, but is focuses more precisely on “websites that are dedicated to infringing activities.”

“The PROTECT IP Act would establish a statutory category of websites that are ‘dedicated to infringing activities.’  There are two ways that a website can meet this statutory category:  Either a website has ‘no significant use other than engaging in, enabling or facilitating’ infringement; or a website is ‘designed, operated, or marketed [] primarily as a means for engaging in, enabling, or facilitating infringement,’ and ‘facts or circumstances suggest’ the website is used ‘primarily as a means for engaging in, enabling, or facilitating infringement.’  Under both definitions, infringement is defined by current copyright and trademark law. Thus the statute requires the offering of goods or services in violation of title 17 U.S.C., such as reproduction, distribution or public performance of copyrighted works (section 501), or circumvention of technological measures that control access to copyrighted works (section 1201), or the sale, distribution, or promotion of goods, services, or materials bearing a counterfeit mark (section 34(d) of the Lanham Act (15 U.S.C. 1116(d))

And finally, for those critics who have charged, without legal justification, that the bill would lead to a blacklist or crackdown on many legal commentary sites, Abrams notes that the PROTECT IP Act focuses “on a narrow category of entities which are not simply trafficking in some infringing content, or occasionally breaking federal laws, but which are primarily devoted to providing and selling infringing content in the United States.”


“Since the PROTECT IP Act applies only to websites that are ‘dedicated to infringing activities,’ based on the precedent for online infringement liability, Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 936 (2005), actions under the PROTECT IP Act require a showing that a target website is both violating current federal law and engaging in wholesale infringement.  Therefore, any website basically engaged in legal activities, such as commentary, socializing or commerce, cannot be pursued under the PROTECT IP Act.  Indeed, the definitions of ‘dedicated to infringing activities’ specifically exclude websites that have any other ‘significant use,’ or websites that are not ‘primarily’ used for infringement.”

How to Generate Huge Petition Numbers Against a Bill that Protects American Workers and Businesses

by MPAA 05/24/2011 08:53 (UTC-08:00) Pacific Time (US & Canada)

The website demandprogress.org, a paid lobbying organization that promotes itself as a progressive voice, forgets that being anti-labor is hardly progressive.  In fact, in its latest campaign to generate attention, demandprogress appears to have allied itself with at least one – and who knows how many more – offshore rogue websites that promote the theft and illegal marketing of American products like movies, video games and software.  Is that progress?  For the 2.4 million workers in the entertainment industry, and for the millions of others who owe their livelihoods to other forms of creative content, the resounding answer is NO!

Even as demandprogress is boasting of hundreds of thousands of signatures in its drive to protect offshore rogue websites, we learned today that one of their partners in this business is demonoid.me, a Montenegro-based online trafficker of stolen content, which is hosting the so-called demandprogress grassroots petition against the PROTECT IP Act. 

So, in the end we have a website that is content to ally itself with criminal enterprises that have a strong, direct, personal and commercial interest in continuing to steal from American creative workers and businesses.
And we have a petition that allows anyone to sign on.

Unlike many other petition gathering organizations that provide safeguards against abuse, the demandprogress site allows literally anyone to sign on.   Anyone.  Just to see if we could, we signed on twice using arbitrary names, bogus emails, and random U.S. zip codes. 

We can assure you, StripeytheLizard (StripeytheLizard@gmail.com, zip code: 90008) and Zedonk, (Zedonk585858@gmail.com, zip code: 91011) are both now listed as petition signers; neither are voting constituents of the stated zip codes; neither have real emails; and both were entered by the same individual.

Contrast this petition with the letter-writing campaign launched by the International Alliance of Theatrical Stage Employees, whose over 110,000 members make it the largest labor union in the entertainment industry. 

Stagehands, makeup artists, and costume designers are only a few of the crafts served by IATSE.  These hardworking, middle-class Americans are real people who are facing the all-too-tangible consequences of online theft: disappearing jobs, declining pensions, and diminished health and retirement benefits.

In a personal appeal, IATSE President Matthew Loeb explains how online theft works, what’s at stake, and how his members and supporters can advocate for a solution, directing them to an online advocacy form to support the PROTECT IP Act.  Writing a support letter to your U.S. Senators requires a title, a first and last name, a full address, email and local number, if applicable. 

We hope that at the end of the day, the scores of letter-writers fighting for their livelihoods – building a groundswell of support for protecting American jobs from foreign, criminal interests – are the ones being heard.

California Attorney General Supports Stopping Rogue Sites

by Kate Spence 05/23/2011 06:12 (UTC-08:00) Pacific Time (US & Canada)

In a letter addressed to U.S. Senate Judiciary Committee Chairman Patrick Leahy, Ranking Member Chuck Grassley and U.S. House of Representatives Judiciary Committee Chairman Lamar Smith and Ranking Member John Conyers, California Attorney General Kamala Harris echoed the sentiments of 42 colleagues who recently threw their collective weight as U.S. Attorneys General behind legislation to quell the network of rogue websites that constitute the online black market.

California, home to both the original tech and movie capitals of the world - Silicon Valley and Hollywood - continues to have one of the largest constituent bases whose jobs rely on the knowledge-based economy.  The state of California maintains its eighth place in the world economy in large part because ingenuity is valued and financial and creative investments are protected.  California has pioneered everything from the green revolution, to the surge in IT development, to biomedical research for curing diseases.  All of these seemingly disparate groups depend on IP protection to secure their investments for future innovation. 

Attorney General Kamala Harris understands that online theft drives a black market that degrades the economic and creative drivers of the state of California.  We appreciate her support for federal legislation to address online theft and applaud her commitment to keep innovators innovating.


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