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January 18, 2012

Mutiny Over Online Piracy

By

It's one of the most contentious but least understood issues now before Congress. It’s one that does not align neatly along party lines and has split the business community.

The issue is online piracy - the illegal sale of copyrighted and trademarked products on rogue pirate websites. Proposals aimed at putting these rogue websites out of business, now pending in the House and Senate, would strengthen restrictions on foreign-based rogue websites, while imposing new obligations on U.S.-based firms that facilitate their operation.

These proposals address a legitimate problem. But they may have unintended negative consequences on the operation of the Internet and on free speech.

There is no doubt that websites selling counterfeit goods, including digital goods such as Hollywood movies, have proliferated on the Internet. Such activity is a form of theft, and the federal government has a legitimate role in preventing it. Currently, U.S. authorities can and do shut down domestically based pirate websites by seizing control of their domain names under asset forfeiture laws.

But a large number of rogue sites are located outside the United States, putting them largely out of the reach of U.S. authorities.

The bills now being considered in the House and Senate. The Stop Online Piracy Act and the Protect IP Act would undercut such rogue sites by prohibiting third parties from dealing with them.

This is how they would work: First, they allow the U.S. attorney general as well as individual intellectual property right holders to sue the alleged foreign pirate website in court. If the site is found to be dedicated to infringement, a range of third-party restrictions would go into effect.

The most controversial of these has been a requirement that Internet service providers such as Verizon directly block requests from the United States to connect to such sites. But that idea was received with a hailstorm of criticism from Internet engineers and others because it would disrupt the operation of the net, as well as weaken Internet security. Congressional leaders recently stated they would withdraw the idea.

But the bills are still flawed. Among the most troublesome provisions is a ban on search engines, such as Google and Yahoo, from including pirate sites in their search results. In effect, the search engines would be placed under a gag order, prohibiting them from disclosing the Web location of rogue websites.

This remarkable restriction goes well beyond current law, which requires the “takedown” of content that infringes on intellectual property rights. Under the Stop Online Piracy Act and the Protect IP Act, no portion of a rogue website may be linked - even pages that contain no infringing content.

The constitutionality of this provision is uncertain. Many legal scholars argue this requirement directly violates the First Amendment. Although First Amendment protections usually don’t apply to restrictions on the use of copyrighted content such as movies, songs and books, the bills would ban links to all content on infringing websites.

Under current case law, it is unclear how a court would rule on the constitutionality of such action. But whatever the legal argument, the restrictions erode freedom of communication on the Web.

Why should anyone care? After all, few would defend the activities of these pirate sites. But limits on speech here are almost certain to be extended to other cases. If links to pirate sites are banned, why not links to sites disseminating national security secrets? Or sites facilitating violence by propagating extreme political positions?

Moreover, other countries, such as China, who have pursued content controls of their own, may be encouraged by steps in the United States to limit content.

Congress should carefully consider the consequences of - and alternatives to - these bills before moving forward.

James Gattuso is a senior research fellow in regulatory policy at the Heritage Foundation.

First appeared in The Washington Times

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