Canadians watching U.S. Protect IP Act, now stalled in Senate

Canadian copyright players are keeping their eyes on the United States Congress for developments related to new “rogue website” legislation that advocacy groups say would hinder innovation and effectively give the U.S. government the power to “block” websites. Three U.S. Senators, Democrat Patrick Leahy and Republicans Orrin Hatch and Chuck Grassley, introduced the legislation, called the Protect IP Act, in the Senate on May 12. The Protect IP Act is a new version of legislation introduced last year called the Combating Online Infringement and Counterfeits Act (COICA). The bill is designed to use American law to stop people in the United States from accessing and supporting pirate websites hosted outside their borders. The Protect IP Act would give the U.S. attorney general the power to serve a court order requiring Internet service providers (ISPs) to prevent access to foreign websites “dedicated to infringing activities.” The attorney general could also obtain court orders requiring search engines like Google to stop linking to so-called rogue sites and prevent American credit card companies and advertising networks from providing financial support to the sites from within the United States. “We're against this, and any right-thinking Canadian should be,” David Fewer, director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), said in an interview. “This is all on top of copyright. You've already got your copyright remedies available to you.” Fewer noted that the legislation also proposes to empower private right of action, permitting companies to seek court injunctions against rogue sites to cut off their revenue sources (but not to block access). He said the act would provide an “incredibly powerful” legal tool for companies without having to go through existing checks and balances in American copyright law, such as those surrounding ISP liability and safe harbour provisions. “That's a huge problem, in my view. It's just too strong and too powerful. We've already got a system to deal with those issues. It's called copyright,” Fewer said. He said CIPPIC is also concerned that the law would permit in rem or general liability actions against a domain name if the owner or registrant cannot be found, allowing for expedited processes. Fewer added that Canadians could be directly affected by the law if the websites they create are blocked because they are deemed as “rogue.” Many websites allow for third-party interaction that is not controlled or monitored by the website owner, he said. “At the end of the day, it's an innovation issue,” Fewer said. The legislation is now on hold at the Senate judiciary committee after Democratic Senator Ron Wyden last week announced that he is blocking a committee motion to proceed with it. Wyden said in a statement that the costs of the bill to innovation and freedom of speech outweigh its benefits. But the legislation is drawing as many if not more supporters than detractors as rights holder groups in the U.S. line up in support of it. “These rogue sites are part of a network of counterfeiting and piracy that a study has found to cost 2.5 million jobs in the G20 economies,” a coalition of about 170 businesses and associations, including Nike Inc., Ford Motor Co., the Motion Picture Association of America and NBC Universal, wrote in a May 25 letter to the Senate judiciary committee. “Many of these sites pose as legitimate businesses, luring consumers with sophisticated and well-designed websites. But, in reality, the counterfeit and pirated products these sites distribute are often of poor quality, harmful, and promote fraud. Further, consumers put themselves at risk of identity theft and malicious computer viruses by visiting these sites.” In the U.S., advocacy groups the Electronic Frontier Foundation (EFF) and Public Knowledge argue that the legislation cuts too broad a swath. “It's website blocking. That's essentially what it is,” Abigail Phillips, a senior staff attorney at the EFF, said in a phone interview. “Instead of targeting specific instances of infringement, it seems that it would target an entire website. When you have entire websites being blocked or made inaccessible to individuals, you have real concerns about lawful speech potentially getting stifled.” The legislation is also receiving attention from intermediaries like search engines and ISPs. The Guardian reported on May 18 that Eric Schmidt, executive chairman of Google Inc., said in a visit to London that the company would resist any requests to block access to website domains. "If there is a law that requires DNSs to do X, and it's passed by both houses of Congress and signed by the president of the United States, and we disagree with it, we would still fight it," he said. "If it's a request, the answer is we wouldn't do it. If it's a discussion we wouldn't do it." Schmidt said blocking access to pirate websites sounds appealing initially but could set “a disastrous precedent” if it leads to the kind of domain name blocking conducted in China. Barry Sookman, a copyright lawyer with McCarthy Tetrault in Toronto who often represents the content industries, said in an interview that the legislation is intended to go after the “wealth destroyer” sites, as the Canadian government has called them. “The problem is these sites can set up anywhere,” he said, noting that the American law would only restrict access within the United States. “They are a real powerhouse when it comes to the cultural industries, and they not only want to create the right conditions in their own market, but in an ideal world, they'd also prefer that people buy legally in other countries,” he said. Phillips said she is concerned that if the legislation passes, support for the law could follow in other jurisdictions. “We're concerned that this will set a precedent for other countries that might want to follow the lead in using this as a mechanism to blocking particular sites from user access.” But Sookman said the Protect IP Act is not an entirely new concept. He said that for at least a decade similar powers have been given to courts throughout Europe. The European Union has issued a directive allowing parties to apply for court injunctions permitting the blocking of websites, Sookman said. “This has been used in Italy, Belgium and other countries to block websites like Pirate Bay. It's never been used against sites that aren't overwhelmingly, uncategorically, pirate sites,” he said. Sookman said companies in Canadian industries such as the gaming sector operate in multiple jurisdictions and have an interest in protecting the Canadian market. He referred to last week's G8 meeting, where world leaders talked about coordinated digital policies. “In an ideal world, there would be coordinated measures implemented at all national levels to deal with these things,” he said. “Given that we're right in the middle of copyright reform, what's going on in other countries is very relevant ... I think we should be looking at this in the same way that we're studying developments in Europe and the United Kingdom.” sdoyle@thewirereport.ca

Canadians watching U.S. Protect IP Act, now stalled in Senate

Broadcast | June 1, 2011

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