PROTECT IP Letter from Law Professors Didn’t Do its Homework
Author:  Michael O'Leary
Date:  07/07/2011

The letter on the PROTECT IP Act from a group of law professors that has been circulating around the blogosphere in the last day or so unfortunately seems designed more to get a reaction than to get its facts right. 

Beyond repeating the disingenuous arguments that the bill would somehow break the Internet (even though the technology it would use is widely in use today with no negative impact) or that it would turn the U.S. into a China-like censorship regime (how on earth is it censorship if the government protects the products of free speech from being stolen?), the letter makes claims that range from wildly misleading to downright inaccurate:

Conveniently Overlooks PROTECT IP’s Strong Court Oversight and Due Process Protections
The letter misses the critical point that PROTECT IP mandates a court’s approval before any partner in the Internet ecosystem – search engines, ISPs, advertisers, pay processors, anyone – has to take any action to prevent access to or stop doing business with a rogue site.  Using language like “credit card companies and advertisers … must stop doing business [with] any site that a private copyright or trademark owner claims is predominantly infringing” ignores the need for court approval. 

The writers also assert that “the Act would allow courts to order any Internet service provider to stop recognizing the site even on a temporary restraining order or preliminary injunction issued the same day the complaint is filed.  Courts could issue such an order even if the owner of that domain name was never given notice that a case against it had been filed at all.”

Yet the PROTECT IP Act clearly and explicitly requires notice to domain name owners by e-mail, postal mail, and “in any other such form as the court finds necessary” under the Federal Rules of Civil Procedure.  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. 

As constitutional expert Floyd Abrams wrote, “[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.”  Read his letter for much more detail on the bill’s strong provisions for due process.

Ignores Years of Precedent
The letter argues that the PROTECT IP Act “fails [the] Constitutional test” of prior restraint.  “It authorizes courts to take websites ‘out of circulation’ – to make them unreachable by and invisible to Internet users in the United States and abroad – immediately upon application by the Attorney General after an ex parte hearing.  No provision is made for any review of a judge’s ex parte determination, let alone for a ‘prompt and final judicial determination, after an adversary proceeding,’ that the website in question contains unlawful material.”

This is simply wrong.  Injunctive relief, which is the judicial remedy the PROTECT IP Act provides, has long been recognized as appropriate and constitutional means to stop the theft of creative works.  Floyd Abrams addresses this point directly:

From the start, injunctions were one form of relief accorded to victims of copyright infringement.  (Courts applied the 1790 Act [Ch. 15, 1 Stat. 124 (1790) (repealed)], and its later amendments, to grant injunctions “according to principles of equity.”  Act of Feb. 3, 1831, ch. 16, 4 Stat. at 438 (1831) (repealed 1870) (cited in Kristina Rosette, “Back to the Future: How Federal Courts Create a Federal Common Law Copyright Through Permanent Injunctions Protecting Future Works,” 2 J. Intell. Prop. L. 325, 340 (1994)).  However, since injunctions in non-copyright cases have frequently been held to be unconstitutional prior restraints on speech, Near v. Minnesota, 283 U.S. 697 (1931); New York Times Co. v. United States, 403 U.S. 713 (1971), and for other reasons, the subject has arisen as to the application, if any, of the First Amendment to copyright principles.  See generally, Melville B. Nimmer & David Nimmer, Nimmer on Copyright Section 19 (2010).

The issue of whether and, if so, how certain elements of the Copyright Act should be read to accommodate various First Amendment interests remains open.  The law could hardly be clearer, however, that injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations.  Indeed, that premise was explicit in the critical concurring opinion in the Supreme Court’s most famous prior restraint case, assessing publication of the Pentagon Papers, which noted that “no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.” New York Times Co., 403 U.S. at 731 n.1 (White, J. and Stewart, J., concurring).  Current treatises reflect this judicial consensus.  

…The evident constitutionality of injunctive relief for copyright violations does not mean, to be sure, that injunctions must automatically or always be issued in response to a copyright violation.  The Supreme Court has recently held to the contrary, warning against the error of a ‘categorical grant’ of injunctive relief for patent infringement in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006), and the Second Circuit has applied that conclusion in a recent, celebrated copyright case, Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010). What no court has ever denied is that injunctions are a valuable and constitutional response to copyright violations.

Misunderstands the Point of the Bill
The letter includes a couple of claims about the PROTECT IP Act that are puzzling when compared with what the bill actually does. 

“Remarkably,” the authors write, “the bill applies to domain names outside the United States, even if they are registered not in the .com but, say, the .uk or .fr domains. ”  It’s correct that the PROTECT IP Act would ask U.S. companies to prevent access to or stop doing business with domain names outside the United States.  In fact, that’s the point of the bill.  When content thieves and counterfeiters set up websites that are based overseas, U.S. law enforcement officers and prosecutors can’t pursue the sites themselves because of limits on their jurisdiction.  But often these rogue sites rely on U.S.-based Internet service providers, search engines, and financial services firms to target American consumers.  If these companies stop providing access to and support for rogue sites, it will make it much, much harder for the thieves to stay in business. 

This sentence from the letter, however, is wrong: “[The PROTECT IP Act] even applies to sites that have no connection with the United States at all, so long as they allegedly ‘harm holders’ of US intellectual property rights.”  The sites to which the bill applies do have a connection with the United States – they use services provided by U.S. companies to stay in business and they target U.S. consumers.  That’s a pretty strong connection.

And finally, the letter claims that “even China doesn’t demand that search engines outside China refuse to index or link to other Web sites outside China.  The Act does just that.”  No, it doesn’t.  PROTECT IP applies to American search engines, American ISPs, American payment processors, and so on. 

Here’s a couple of facts we won’t misstate:  stealing creative content and profiting from it is wrong.  It hurts real people all across the country who work hard to make the movies and TV shows that rogue sites casually rip off.  And it jeopardizes future investment in the productions that will give those people their next job tomorrow or next year. 

The authors are right that the Internet is a powerful tool to bring people together and help us communicate in ways we’ve never been able to do before.  That doesn’t mean it should also be a powerful tool for theft.