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Law profs rap PROTECT Act, say it would 'break' Internet

Lemley, et al: act aligns
U.S. with tyrants

A proposed law that its supporters say will curb the theft of intellectual property on the Internet will do more harm than good to cyberspace, a trio of law professors declared in a letter sent to Congress.

"Although the problems the Act attempts to address — online copyright and trademark infringement — are serious ones presenting new and difficult enforcement challenges, the approach taken in the Act has grave constitutional infirmities, potentially dangerous consequences for the stability and security of the Internet's addressing system, and will undermine United States foreign policy and strong support of free expression on the Internet around the world," wrote professors Mark Lemley, of the Stanford Law School; David S. Levine, of the Elon University School of Law; and David G. Post, of the Temple University School of Law.

The measure referred to by the academics is the PROTECT IP Act filed by Sens. Patrick Leahy (D-VT), Chuck Grassley (R-IA) and Orin Hatch (R-Utah) that has been sidelined in the Senate since May 26.

According to the senators, the proposed statute allows law enforcement authorities to get at the worst of rogue websites selling goods that infringe on intellectual property rights. It does that, though, in Draconian fashion, according to the law profs.

The act would allow the government to break the Internet addressing system by requiring Internet service providers, and operators of Internet name servers, to refuse to recognize Internet domains that a court considers “dedicated to infringing activities,” they explained.

"But rather than wait until a Web site is actually judged infringing before imposing the equivalent of an Internet death penalty," they wrote, "the Act would allow courts to order any Internet service provider to stop recognizing the site even on a temporary restraining order or preliminary injunction issued the same day the complaint is filed.  Courts could issue such an order even if the owner of that domain name was never given notice that a case against it had been filed at all."

What's more, the proposed law bars credit card providers, advertisers and search engines to deal with the owners of a site accused of hosting infringing material, they maintained.

"In the case of credit card companies and advertisers, they must stop doing business not only with sites the government has chosen to sue but any site that a private copyright or trademark owner claims is predominantly infringing," they explained.

"Giving this enormous new power not just to the government but to any copyright and trademark owner would not only disrupt the operations of the allegedly infringing web site without a final judgment of wrongdoing, but would make it extraordinarily difficult for advertisers and credit card companies to do business on the Internet," they argued.

They asserted the act should be rejected by Congress for three reasons.

  • It suppresses free speech without notice and a proper hearing.
  • It breaks the Internet's infrastructure. "If the government uses the power to demand that individual Internet service providers make individual, country-specific decisions about who can find what on the Internet, the interconnection principle at the very heart of the Internet is at risk," the professors argued.
  • It undermines the nation's leadership in supporting and defending free speech and the free exchange of information on the Internet. "At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, the Act would incorporate into U.S. law — for the first time — a principle more closely associated with those repressive regimes:  a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law."

"While copyright infringement on the Internet is a very real problem, copyright owners already have an ample array of tools at their disposal to deal with the problem.  We shouldn’t add the power to break the Internet to that list," the trio contended.


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