The Protect Ip Act

400 North Capitol Street NW, Suite 585 Washington, D.C. 20001 Phone: 202-624-1460 | Fax: 202-393-5218 www.netcoalition.com | [email protected] REFERENCE MATERIALS ON THE PROTECT IP ACT • CONTENTS • o About NetCoalition o About the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011” (“PROTECT IP Act”) o Center for Democracy & Technology Letter in response to the MPAA concerning the PROTECT IP Act (September 23, 2011) o Entrepreneurs’ Opposition Letter on the PROTECT IP Act (September 8, 2011) o Demand Progress and Don't Censor the Net Joint Statement (August 28, 2011) o Congressional Budget Office Estimate of the PROTECT IP Act (August 16, 2011) o Legal Experts’ Opposition Letter on the PROTECT IP Act (July 5, 2011) o Venture Capitalists’ Opposition Letter on the PROTECT IP Act (June 23, 2011) o Public Interest Opposition Letter on the PROTECT IP Act (May 25, 2011) o Net Coalition Opposition Letter on the private right of action provisions included in S.968, the PROTECT IP Act (May 25, 2011) o NetCoalition Testimony Before the Senate Judiciary Committee Hearing on “Targeting Websites Dedicated to Stealing American Intellectual Property” (February 16, 2011) o NetCoalition Letter on S.3804, the Combating Online Infringement and Counterfeits Act (“COICA”) (November 15, 2010) o Computer Security Researcher Dan Kaminsky’s Opposition Letter on DNS Filtering and COICA (November 5, 2010) o Public Interest Letter on COICA (September 27, 2010) o White Paper on “Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill” (May 2011) *** o BELOW: Press clippings (various) on the PROTECT IP Act and COICA NetCoalition represents leading global Internet and technology companies, including Google, Yahoo!, Amazon.com, eBay, IAC, Bloomberg LP, Expedia and Wikipedia, providing a platform from which members can engage legislators, through active dialogue, on public policy that raises important and fundamental issues involving NetCoalition’s primary agenda. At the core of our values, NetCoaltiion seeks to preserve the vitality of the Internet that exists today – an open and consumer-oriented competitive environment – which inspires global innovation and trade. We support strong and meaningful initiatives to protect intellectual property – which are, for many companies, among their most valuable assets – and enforce these voluntarily and vigorously. NetCoalition’s primary agenda includes – ● Promoting a balanced copyright, trademark and data-protection framework in the United States and internationally. ● Preserving a legal regime for Internet companies that inspires innovation and supports the existence of consumer-oriented applications and services free from laws and regulations that impose undue liability on companies that host, locate and provide access to content on the Internet. ● Enforcing consumer-protection policies that facilitate well- informed decisions by consumers regarding accessibility of personal information on the Internet. Markham C. Erickson serves as Executive Director and General Counsel to the coalition. He is a founding partner of Holch & Erickson LLP, where he represents clients before federal regulatory agencies, courts, and the United States Congress. His practice typically involves engagement on complex issues relating to the Internet, new technologies, and nascent industries. He also has an active practice in Native American law and policy. The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (“PROTECT IP Act”) A Bill of Unintended Consequences On May 18, 2011, the Senate Judiciary Committee reported out the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (“PROTECT IP ACT”). This legislation, similar to last year’s Combating Online Infringement and Copyrights Act (“COICA”), gives the U.S. government authority to address copyright infringement and the sale of counterfeit merchandise on the Internet. These “rogue” website legislative initiatives are intended to target foreign websites dedicated almost exclusively to illegal copyright and trademark infringement activities. While NetCoalition supports the goal of the legislation, the PROTECT IP Act will ultimately put American innovators and investors at a serious disadvantage in the global economy. This legislation would likely set an international precedent inspiring international engagement in protectionism and censorship activities, which conflict with the United States’ agenda for a collaborative global Internet marketplace that supports healthy, consumer-oriented competition and economic growth. Most notably, the PROTECT IP Act enables rights holders to obtain orders to block access to online services by intermediary third parties – with limited oversight and due process. This private right of action provision imposes significant burdens on legitimate online commerce services. The scope of orders and cost of litigation will be significant, even for companies acting in good faith to address illegal copyright- infringing activities. Creating a private litigation regime ignores the voluntary, proactive processes implemented by Internet service providers, advertisers, credit card companies, payment processors, search engines, domain name registrars and registries to combat online piracy. The members of NetCoalition have the most robust and responsive “notice-and-take down” processes in the world. And no stakeholder asserts NetCoalition members are engaging in illegal activity. As such, it is highly extraordinary that Congress would even consider subjecting payment processors and Internet and technology companies to a private right of action. Rightsholders claim that a private right of action is needed because the Department of Justice cannot effectively enforce copyright and trademark laws. Should this be the case, discussions among legislators and stakeholders ought to focus on alleviating this issue. Shifting the burden and costs of enforcing copyright and trademark laws to lawful intermediary service providers is not a sensible solution. NetCoalition remains committed that no entity should make money from sites dedicated to copyright-infringing activities. Consequently, assigning enforcement responsibilities to payment processors, advertising companies and sponsored link providers delivered by search engines – provided there are appropriate safeguards from new, undue liabilities and a prohibition on “tech mandates” – is a sensible solution. A similar approach was approved by Congress in the Unlawful Internet Gambling Prohibition Act, which precludes payment processors from interacting with unlawful overseas gambling operations. We urge Congress to consider this precedent while moving forward on the PROTECT IP Act. September 23, 2011 TO MEMBERS OF THE UNITED STATES SENATE: We are writing in response to the September 20, 2011 letter by the Motion Picture Association of America (MPAA) and a number of its allies concerning S. 968, the PROTECT IP Act. There is no substantial disagreement with the billʼs goal of combating the online infringement of copyrights and trademarks; that is a valid and important aim. But some of the specific provisions of S. 968 are far more controversial and would do far more damage than MPAAʼs letter suggests. We would like to respond in particular to the following points. § MPAAʼs letter says that the billʼs tactic of requiring ISPs to block domain- name lookup requests is already in use today to fight spam and malware, and can be employed without endangering the emerging security technology known as DNSSEC. But the principal author of the preeminent domain-name blocking technology says that the approach canʼt work for copyright infringement; it is an approach that only works when the users want to be protected.1 Even more important, Internet engineers with unassailable domain name system expertise have warned that S. 968 could stop DNSSEC – a crucial effort to improve Internet security, over 15 years in the making – dead in its tracks.2 The Internet Society likewise states that domain-name filtering will impede DNSSEC and decrease global security.3 There is no basis for the MPAAʼs breezy dismissal of the serious technical and security problems with portions of S. 968. § MPAAʼs letter cites Ofcom, the United Kingdomʼs independent communications regulator, as concluding that domain-name blocking could deter casual and unintentional infringers. But the same Ofcom report found that blocking domain names is “incompatible” with DNSSEC, and that therefore “a replacement for DNS blocking would be required 1 Paul Vixie, “Alignment of Interests in DNS Blocking,” Jul 23, 2011, http://www.circleid.com/posts/20110723_alignment_of_interests_in_dns_blocking/. 2 Steve Crocker, David Dagon, Dan Kaminsky, Danny McPherson, and Paul Vixie, Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill, May 2011, http://www.shinkuro.com/PROTECT%20IP%20Technical%20Whitepaper%20Final.pdf. 3 Internet Society Perspectives on Domain Name System (DNS) Filtering, Sept. 15, 2011, http://www.isoc.org/internet/issues/docs/dns-filtering_20110915.pdf. within the next three years.”4 Tellingly, the U.K. government responded to the Ofcom report by deciding not to move ahead with site-blocking regulations that had been 5 proposed. § MPAAʼs letter cites a favorable editorial by the Washington Post. But other major newspapers have urged caution. The

Load more