The PROTECT IP Act Is Good for Emerging American Enterprises

by Howard Gantman 07/15/2011 06:41 (UTC-08:00) Pacific Time (US & Canada)

In a Huffington Post piece published earlier this week, Kauffman Foundation Senior Fellow Paul Kedrosky made sweeping, erroneous accusations about the PROTECT IP Act, what it would do, and who it would affect, finally concluding that the PROTECT IP Act would somehow damage the entrepreneurial ecosystem in this country. 

Nothing could be further from the truth.  

Among the most egregious inaccuracies was Kedrosky’s characterization of the type of websites that would be targeted and how complaints would be handled under PROTECT IP:  “If a site contains a page with illegal content -- say, a link to a pirated movie -- the copyright owner can petition a U.S. court to make that site invisible to people inside the U.S.” 

This is simply not true.  The PROTECT IP Act narrowly targets only foreign sites dedicated to facilitating, enabling, or engaging in copyright infringement for financial gain. 

As Copyright Alliance pointed out in a blog posted yesterday, “This is defined narrowly as sites that ‘have no significant use’ other than infringement – a test derivative of the standard announced by the Supreme Court in the Sony Betamax case, which has long been recognized by consumer electronics and information technology companies as the appropriate standard for distinguishing infringing products from staple articles of commerce.”

We’re talking about sites whose only purpose is to profit from the stolen work of American creators.   

Furthermore, only the Attorney General – not copyright holders – would be able to seek a court order asking search engines and other intermediaries to block these sites from U.S. consumers. 

Kedrosky continued recycling previously debunked myths about the bill, saying, “There is no due process… no presumption of innocence, and no notification requirement,” and claiming that it represents an “overbroad attack on free speech.”

The PROTECT IP Act clearly and explicitly requires notice to domain name owners.  Only “if through due diligence the Attorney General is unable to find” a website or domain name owner can an action proceed without this notice, and as in each and every case under PROTECT IP, a court’s approval would be required before ISPs or other entities would have to take any action. 

When constitutional expert Floyd Abrams weighed in, he found that “[t]he procedural protections under the Protect IP Act are so strong, uniform and constitutionally rooted that it is no exaggeration to observe that any complaints in this area are not really with the bill, but with the Federal Rules of Civil Procedure Itself, which govern all litigants in U.S. federal courts.” 

In the same letter, Abrams also discredited allegations that PROTECT IP would somehow violate free speech rights, stating, “Copyright violations are not protected by the First Amendment.”

Our question to Mr. Kedrosky is this: How is protecting the creative investments of American workers from foreign criminals bad for entrepreneurs?  New, legal online platforms offering movies and TV episodes are cropping up all the time, giving consumers the freedom to watch videos however, whenever, and on whatever they choose. 

Not only do these rogue sites hurt the creators whose work is stolen, they also discourage investment in these innovative startups that offer legal content.  That’s a double-edged sword that’s harming American workers, limiting our potential for economic growth, and slowing down the development of creative enterprises offering new ways for consumers to enjoy legal content. 

As Copyright Alliance put it, “These are criminal enterprises that are profiting from the work of America’s small businesses, artists, authors and entrepreneurs, and that would be subject to felony criminal proceedings (not just civil injunctive relief) if they committed these same acts in the brick and mortar world.  That sort of activity does not fall under any definition of entrepreneurship.”

The PROTECT IP Act will bolster, not harm, American entrepreneurialism by safeguarding intellectual and financial investments in exciting new ventures.

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