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Bipartisanship's Not Dead, It's Just Reserved for Stuff Most People Don't Like

July 6, 2011 - by Donny Shaw

About the only things getting real bipartisan love in Congress these days are Hollywood-backed bills to make the government a more powerful force in online copyright enforcement. I wrote about one already that would make streaming of copyrighted content a felony with jail time as a possible penalty. The other is S.968, the PROTECT IP Act, that would empower the Department of Justice to demand search engines and domain registries to block websites they determine are “dedicated to infringing.”

The PROTECT IP Act was introduced in May by Sen. Pat Leahy [D, VT] (pictured). It had 11 original co-sponsors when it was introduced, but the co-sponsorship list has now grown to 22 (11 Republicans and 11 Democrats). On May 26th it was unanimously passed by the Senate Judiciary Committee. The next step in the legislative process is consideration by the full Senate. 

The bill targets “internet sites dedicated to infringing activities,” which it defines as sites that have “no significant use other than engaging in, enabling, or facilitating the […] reproduction, distribution, or publication of copyrighted works” in violation of laws against copyright infringment (Section 501 of Title 17, U.S. Code).

The DoJ would be responsible for determining what constitutes a “significant use.” In the case of a music blog, is an original review posted by the site site editor considered significant? What about the authorized sharing of music and video with services like Rapidfire? If “significant” is interpreted to have anything to do with economic value, it’s possible that these uses would not be deemed significant and would not prevent a site from being blocked.

They would also determine what constitutes a copyright infringement and would be empowered to issue take-down orders without be required to first allow the site owner to defend themselves in court. Wikipedia editors note the potential for abuse in quelling political speech. “If WikiLeaks were accused of distributing copyrighted content, U.S. search engines could be served a court order to block search results pointing to Wikileaks,” they write. “Requiring search engines to remove links to an entire website altogether due to an infringing page would raise free speech concerns regarding lawful content hosted elsewhere on the site.”

A group of prominent intellectual property lawyers recently described how the bill could violate First Amendment rights in a letter expressing their opposition.

The Supreme Court has made it abundantly clear that governmental action to suppress speech taken prior to “a prompt final judicial decision . . . in an adversary proceeding” that the speech is unlawful is a presumptively unconstitutional “prior restraint,”1 the “most serious and the least tolerable infringement on First Amendment rights,” permissible only in the narrowest range of circumstances. The Constitution “require[s] a court, before material is completely removed from circulation, . . . to make a final determination that material is [unlawful] after an adversary hearing.”

The Act fails this Constitutional test. It authorizes courts to take websites “out of circulation” – to make them unreachable by and invisible to Internet users in the United States and abroad — immediately upon application by the Attorney General after an ex parte hearing. No provision is made for any review of a judge’s ex parte determination, let alone for a “prompt and final judicial determination, after an adversary proceeding,” that the website in question contains unlawful material. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.

Obviously, we can’t be sure how the bill will be used if it becomes law. The question is whether the language is written narrowly enough that we trust the government to use it in a way that respects our legal rights. So far, just about every public interest group that has looked it have determined that it is too broad (see: EFF, Public Knowledge).

The good news: Sen. Ron Wyden [D, OR] has put a “hold” on the bill and is pledging to make things difficult for Senate leaders if they try to bring it to the floor. The bill’s opponents also have a powerful ally in Google, which announced recently that it is hiring 12 new lobbying firms that will almost certainly be working against this bill.

The bad news: At this point, interest groups that are publicly supporting the bill have given way more money to members of Congress than those that are publicly opposing it.

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