Three controversial new laws are on the horizon which, if enacted could have a significant impact on the Internet in the United States. Imagine if your business is accused by a competitor of distributing infringing content and your site is taken off the Internet before you have a chance to defend. Imagine search engines refusing to show your site on search results. Imagine being banned from using the Internet. Imagine your music player or laptop searched at the border for infringing content. All of this and more could come true under these pending laws.
Protect IP Act
Sponsors of the “Protect IP Act” (S. 968) claim that the law is intended to fight piracy and copyright infringement. It is a law that is strongly supported by the large media companies who face serious problems with content infringement. However, the bill has attracted broad criticism from small business and civil liberties groups. The bill, if passed into law, would give the Justice Department the ability to seek court orders seizing the sites’ domain names and requiring search engines, payment processing companies and advertising networks to blackball web sites deemed to promote infringing content. The problem is that the bill does not provide a clear definition of what constitutes an infringement-promoting site therefore leaving the door open to commerce chilling threats web site shutdowns. Separately, including a private right of action means that any rights holder can tie up a service provider in costly legal action, even if the claims eventually turns out to not be valid. For a small business or startup this makes them very vulnerable to the well-established media companies. The bill has been put on hold by Senator Ron Wyden (D-OR).
Stop Online Piracy Act
A successor to the Protect IP Act is the “Stop Online Piracy Act” (H.R. 321) which was introduced last month by a bipartisan group of senators. The House Judiciary Committee will hold a hearing on the act November 16, 2011. As with the stalled Protect IP Act, H.R.321 allows copyright owners to required search engines to block accused websites from showing up on search results. Internet service providers such as AT&T or Comcast can be required to block accused websites from their customers. Payment companies such as PayPal, Visa or MasterCard can stop all payment processing for any website that they suspect may be posting copyrighted work without permission. The bill has been criticized for its “shoot first ask questions later” approach and the economic damage that it could cause falsely accused sites.
The Anti-Counterfeiting Trade Agreement
The last of these three new potential laws is part of a new international copyright protection treaty. The Anti-Counterfeiting Trade Agreement (ACTA) is a multilateral agreement which would create a new international network of laws and regulations governing copyrighted content. Several factors have made ACTA controversial. First, it has been negotiated amongst the parties outside of established multinational organizations in order to keep its terms secret. This secrecy has been justified by the US and Japan as matters of national security. Repeated leaks have raised concerns about elements of the treaty that call for border searches of laptops, mandatory banning of users from the Internet, enhanced fines and criminal penalties. Another controversial factor in the treaty is that ACTA negotiations have excluded infringement producing countries such as China, India, Russia and Pakistan. The penalties and rules are therefore targeted at punishing users in content producing countries in order to dry up demand (parallels could be made to the drug war strategy). Finally, numerous concerns have been raised about surveillance and human rights.
A signing ceremony was held on October 1, 2011 in Tokyo, at which the United States, Canada, Australia, Japan, New Zealand, Morocco, Singapore, and South Korea signed the treaty. The European Union, Mexico, and Switzerland did not sign the treaty, but attended the ceremony and indicated their intent to sign the treaty in the near future.
Consistent with the history of the treaty, its ratification into US law is now clouded in controversy. The USTR has claimed that ACTA is consistent with current U.S. copyright, patent, and trademark laws, and therefore it “does not require the enactment of implementing legislation.” The USTR further stated that “The United States may therefore enter into and carry out the requirements of the Agreement under existing legal authority, just as it has done with other trade agreements.” This claim that the Act does not require ratification has not been well received. Critics have voiced concerns that the ACTA is not consistent with U.S. law and that the president does not have the proper authority to bind the U.S. to the agreement without congressional ratification. Senator Ron Wyden (D-Ore.) has stated that “if the USTR ratifies ACTA without Congress’ consent it may be circumventing Congress’s Constitutional authority to regulate international commerce and protect intellectual property.” Time will tell what will happen.