Tech Execs Should Read the PROTECT IP Act Before Attacking It
Author:  Alex Swartsel
Date:  09/08/2011

There’s a theme in the series of letters that we’ve seen so far from collections of people opposed to the PROTECT IP Act, including today’s message from tech executives: they convey sweeping, generic concerns that, compared with the actual language of the bill, seem completely unfounded. 

Today’s letter announces: “[W]e fear that if PIPA is allowed to become law in its present form, it will hurt economic growth and chill innovation in legitimate services that help people create, communicate, and make money online. … the bill will create uncertainty for many legitimate businesses and in turn undermine innovation and creativity on those services.” 

Yet as we outline below, PROTECT IP “in its present form” is actually very carefully and narrowly written to make clear that the last thing it is intended to do, or will do, is harm legitimate businesses operating in good faith.   

PROTECT IP’s Definition of Infringing Sites is Anything But “Vague”
Asserting, without proof, that the bill’s definition of infringing sites is “vague” doesn’t make it so.  This letter gets it wrong right off the bat by beginning its argument with “Legitimate sites with legitimate uses can also in many cases be used for piracy” – while that’s unfortunately true, the PROTECT IP Act simply does not apply to legitimate sites. 

In fact, the PROTECT IP Act is, intentionally, so narrowly focused that it covers only websites whose sole purpose is to provide or point to stolen content.  The bill’s definition of an “Internet site dedicated to infringing activities” states:

“the term `Internet site dedicated to infringing activities' means an Internet site that has no significant use other than engaging in, enabling, or facilitating the reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement … or is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating” infringement (see Section 2(7), emphasis ours).

It’s clear that this definition is meant to apply to the Pirate Bays of the world, not the Twitters or the LinkedIns or the FourSquares.  And it’s difficult to see how such a definition will be “ripe for abuse” when any entity pursuing an action under this bill, whether it’s the Department of Justice or a private creator – will have to prove to a federal court that a given website meets that description before anything else happens. 

“Burdens for Smaller Tech Companies” Are Largely Imaginary
 The letter claims that PROTECT IP would require its signatories to make “costly changes to their infrastructure, including how we remain in compliance with blocking orders on an ever-changing Internet.”  But this overlooks protections set out in the PROTECT IP Act precisely to mitigate such costs, including language requiring information location tools to take only “technically feasible and reasonable measures” to comply with the Act. 

Further, a read through the text of the bill shows that fears of “possible liability” are almost surely baseless.  The letter totally overlooks PROTECT IP’s very, very strong legal protections for service providers and other entities in the Internet ecosystem that are called upon to take action under this bill.  There are three worth pointing out (all emphasis ours): 

  1. Internet entities and their employees who take steps “reasonably designed to comply with [the bill] or reasonably arising from [a court] order” are granted immunity from suit and from liability. 
  2. Entities cannot be held liable for “any actions taken by customers of such entity to circumvent any restriction on access to the Internet domain instituted pursuant to this subsection.” 
  3. Entities cannot be held liable for “any act, failure, or inability to restrict access to an Internet domain that is the subject of a court order issued pursuant to this subsection despite good faith efforts to do so by such entity.”

The bill permits plaintiffs to ask the court for injunctive relief only if an entity “knowingly and willfully fails to comply” with a court order, not in instances of good faith efforts to comply.  This is a high, high bar for plaintiffs to meet.

This sentence from the letter is telling: “Legitimate services already do their part by following the notice-and-takedown system of the DMCA.”  One way to think of the PROTECT IP Act is as a badly-needed companion to the DMCA – because so many rogue sites are based overseas, and do not comply with DMCA.  The two measures are in much the same spirit.

More of the Same Discredited Arguments on Internet Security
The letter also repeats arguments we’ve heard before suggesting that the bill would somehow undermine the architecture of the Internet – many of which have been debunked here and here, and to which we’ve responded here.  It’s clear that this bill would have no negative impact on the Internet.

Clearly this letter got its facts badly wrong.  But in the end, what’s even more troubling is its blithe assertion that “[t]here are certainly challenges to succeeding as a content creator online, but the opportunities are far greater than the challenges, and the best way to address the latter is to create more of the former.”  Tell that to a filmmaker like Jason Stall or Ellen Seidler, who fight for every dollar they raise to finance their films and then have to fight again to try to stop content thieves from draining their earnings away. 

Certainly the opportunities created by new platforms are immense – but those new platforms and services will never reach their full potential, nor serve creators as they should, if they are forced to compete with thieves.  Legislation like PROTECT IP is the right approach to protect content online.