Jun
22
2011

Internet Copyocalypse: Senate Bill 968 - Online Threats to Economic Creativity

There has been quite an uproar regarding Senate Bill 968, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011.  On the one hand, proponents of the bill claim it is necessary for the protection of US intellectual property rights by overseas infringers.  The bill's goal is to provide a mechanism to shut down an off-shore server from distributing infringing material within the United States. Opponents of the bill, however,  state that the bill amounts to a heavy-handed policing of the internet.  Further criticism comes from the technical community which warns that the mechanism of shutting down the off-shore websites (forcing ISPs to re-route DNS entries) has unforeseen technical implications.

The bill is about thirty pages long and filled with legalese.  Below is a rough translation into layman's terms of the key points.  (As always-- this is not legal advice.  How the legislature, a court, or another attorney may parse this language will vary.)  If you want to read the actual text go here for the complete text of the bill.

SECTION 1. SHORT TITLE.

PROTECT IP Act of 2011

SEC. 2. DEFINITIONS.

4. Information location tool means things such as "a directory, index, reference, pointer, or hypertext link" (17 USC 512(d)).

5. Internet advertising service means anyone who advertises on the internet, displays advertisements on a website advertises, or acts as a middle-man like Google.

7.  Internet site dedicated to infringing activities means a website whose primary purpose is directly or indirectly any of the following: (i) committing copyright violations; (ii) helping people circumvent technical copyright protections (e.g. DVD ripping software); (iii) selling knock-off goods.

9.  Nondomestic domain name means one registered outside of the U.S.

SEC. 3. ENFORCEMENT (By the Government)

(a) Persons who can be brought to justice:

(1) The Attorney General of the U.S. has carte blanche to go after an owner, operator or registrant of an infringing website.

(2) The Attorney General can also just go after the domain name.

(b) What the government gets to do:

(1) Go after any infringing website which can be accessed from the United States.

(c) How the Process Works:

(1) The domain name registrant get's a notice by email and mail.

(Presumably the court would then hold a hearing on the AG's action, but nothing is stated about that process).

(d) What happens when the Attorney General wins:

(1) The court order is served on:

(A) DNS.  Anyone running a DNS server who is served with the court's order must re-route the infringing website domain.  This includes someone with  a personal linux server running BIND all the way up to authoritative root DNS servers.

(B) Banks. Banks must stop any financial transactions going to these websites.

(C) Advertiser.  Any internet advertising service (see above) must stop working with the infringing website.

(D) Links.  Any information location tool (e.g. someone with a link to the infringing website) must take it down.  Search engines must remove the site from their indexes.

(5) (A);(B) Anyone who helps out by doing A, B, C, or D, above cannot be sued -- especially not by someone who wrongfully had their site wiped off the internet.

(e) Other stuff the Attorney General can do:

(1) Bring an action against anyone who does not wipe the website off the internet.

(2) Your only defense is that complying with the order would be too costly to enforce.

(f) Changes to orders

(1) The court can modify its order at any time.

(2) To reverse an order you can claim that you've "stopped infringing."

(3) The court will also consider the fact that you are a new owner of a previously infringing site.

SEC. 4. ENFORCEMENT (By a company)

Just like the Attorney General, a company can sue the registrant of the domain name or a company can go after the domain name directly.  Almost exactly the same as Section 3.

SEC. 5. VOLUNTARY ACTION (By a company)

(a)  On their own, internet advertising services (see above) and banks can stop working with infringing websites.  If they take such voluntary action, they cannot be sued.  (Apparently this would allow banks and other companies to breach any agreement they have with an allegedly infringing website.)

(b) On their own, domain name registries, banks, and advertisers can black list allegedly infringing websites.  If they take such voluntary action, they cannot be sued.

SEC. 7. GUIDELINES AND STUDIES.

(a) The Attorney General will issue their own rules regarding all of this.

(b) The Attorney General will issue reports to show how well this law is working.

SEC. 8. IMPORTATION

Homeland security will share information with companies and work with companies to stop importation of infringing products at the border.

 

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