Between a Rock and Hard Spot: IP Piracy and Due Process

DangerPiratesSome intriguing and troubling questions about proposed legislation

As part of our mission here at FreePlayVL, we keep an eye out for copyright developments, so we gravitated to a recent article highlighting digital rights: “Digital Rights, Privacy, Social Media and The Cloud: Cocktail for a Meltdown? 4 Ways Not to Drink the Kool-Aid

Besides crafting an engaging title, author Andrew Edwards raises some intriguing and troubling questions about how proposed legislation introduced in May relates to Hollywood interests. From our perspective, this proposal could just as easily apply to music copyrights.  Sure enough, when we looked further, the list of supporters includes the Recording Industry Association of America.

“To prevent online threats to economic creativity and theft of intellectual property… to eliminate the financial incentive to steal intellectual property online.” S.968

We’re sure this sounds like a great tool, if you’re a motion picture or recording studio battling to protect IP from foreign piracy.  However, while this legislation is aimed primarily at sites operated from outside of the United States, it’s not hard to see how some may argue this is an appropriate approach to protect IP domestically too.

Slippery slope.

This makes the Protect IP Act (S.968) pretty scary.  The “Open Congress” website (which, FYI, is a pretty cool resource!), describes the proposed legislation as follows:

Establishes a system for taking down websites that the Justice Department determines to be ‘dedicated to infringing activities.’ The DoJ or the copyright owner would be able to commence a legal action against the alleged infringer and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. In some cases, action could be taken to block sites without first allowing the alleged infringer to defend themselves in court.

As proposed, it’s not enough that the alleged offending website be shut down, or cease and desist, this legislation would make third parties responsible for making the alleged offender invisible by demanding by rule of law that search engines, social networking sites and domain name services block access, AND that financial transaction providers (a.k.a., credit card companies) “take reasonable measures… designed to prevent, prohibit, or suspend service from completing payment transactions involving customers located within the United States and the Internet site.”

International and domestic laws protecting IP strive to protect owners rights, but must do so without negatively impacting the rights of consumers, artists, the entertainment industry, and technology manufacturers.  While the proposal is very clear on what must happen if a claim is made, it’s troubling the proposed legislation is vague on the cure if a site be shut down in error.  Equally problematic, no one is accountable IF a mistake is made, as all third parties are guaranteed immunity for complying with an order. Are we comfortable with the precedent that someone with a vested interest be in a position to make a claim and have it take effect without due process?

We fully agree there are a lot of bad actors out there intending to steal and profit from IP they do not own.  But what if there is a genuine conflict in claims? Near as we can tell, it doesn’t allow equally swift recourse, nor means whereby technology-enabled differences of opinion with respect to IP can be debated. It wasn’t that long ago that iTunes was questioned as a threat to IP rights in a post-Napster frenzy. It does not serve the greater good to circumvent due process where these questions would be debated before a judge and jury – where consistent rules apply and oaths are taken to help ensure that truth and fairness prevail.

This legislative proposal may help with some IP piracy, but it could also undermine the egalitarian and entrepreneurial spirit of the Internet which has resulted in so much innovation, and may well hamper the protections of due process that serve us all. We appreciate the objective, but the means must also be considered.

What do you think? Are there better ways to address IP piracy? This legislative proposal is worthy of making your thoughts known to your representative. Open Congress also publishes the special interests (that is, those with the ability to spend to try and sway the opinions of our legislators) and the contributions they’ve given to congressional supporters (as well as for those that oppose this legislation).

Good to know.

The funding to oppose this legislation is substantially less than those spending to ensure it’s passage, though VISA and Google are among the organizations fighting against it.

Our freedoms require vigilance, and we all have to be willing to take a stand. Give yourself three minutes to catch up on this proposal, and make your thoughts known to your representativesCongressional Directory.

Piracy image courtesy Crunchy Brain Doodles

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