The Preventing Real Online Threats of Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act, is supposedly targeted at so-called ”rogue websites” that trade in infringing goods. Abigail Phillips gives some much-needed context to the controversial legislation for the Electronic Frontier Foundation:
Last year’s rogue website legislation is back on the table, with a new name: the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011″—or (wink, wink) “PROTECT IP”. The draft language is available here.
The earlier bill, which failed to pass thanks largely to a hold on the legislation placed by Senator Ron Wyden of Oregon, would have given the government dramatic new copyright enforcement powers targeted at websites “dedicated to infringing activities,” even where those websites were not based in the United States. Despite some salient differences (described below) in the new version, we are no less dismayed by this most recent incarnation than we were with last year’s draft.
First, the legislation now includes a private right of action for intellectual property owners. This means that IP owners as well as the government can seek injunctions against websites “dedicated to infringing activities” in addition to court orders against third parties providing services to those sites. (Notably, IP owners can also bring actions to enforce the court orders.) Consider whether Viacom would have bothered to bring a copyright infringement action against YouTube—with the attendant challenges of arguing around the DMCA safe harbors—had it had this cause of action in its arsenal. The act includes language that says it’s not intended to “enlarge or diminish” the DMCA’s safe harbor limitations on liability, but make no mistake: rights holders will argue that safe harbor qualification is simply immaterial if a site is deemed to be dedicated to infringement.
Second, the scope of the language has been expanded to include additional categories of third-party providers that can be subject to court orders. Under the new act, “interactive computer services” and “servers of sponsored links” can be required to cease linking to particular websites. We’d heard about a potential “search engine provision,” but these additions arguably go much further. An interactive computer service (the term, and its definition, are borrowed from the Communications Decency Act) could include not only Bing but also sites like Facebook, Twitter, and potentially any service or web page where a URL might turn up…
[continues at the Electronic Frontier Foundation site]