Tell Congress it’s Time to #UnlockTheBoxLearn More About The FCC's Proposal
The Senate is gearing up for another go-round on rogue websites legislation, and this time, they've jettisoned the "COICA" label in favor of calling it the "PROTECT IP Act." Like a summer blockbuster sequel, it tightens up some things, adds a few new villains, but in the end reprises the same general plot. (Don't Censor the Net has the apparent an earlier draft text online; coverage of that at TechDirt and Ars Technica.)
This blog post originally referenced the earlier version of the bill. The updated post now refers to the version linked above.
More of the Same
That basic idea is to make new sets of intermediaries (including DNS servers, ad networks, payment processors, and now, "information location tools" "interactive computer services") the checkpoints at which authorities can police for websites dealing in infringing content. Unchanged is the Attorney General's ability to order ISPs and other DNS providers to blacklist certain websites, meaning that their users, instead of being directed to the IP address of the domain they entered, would be redirected somewhere else.
Of course, any DNS provider not issued such an order would still be pointing at the site, which would still be up at its IP address. The major DNS providers in the US (who are mostly ISPs) would then be at variance with DNS servers elsewhere. In isolation, this inconsistency might not amount to much. But as governments around the world start ordering DNS providers in their borders to blacklist what they don't like, and as DNS providers themselves get increasingly comfortable with deviating from the global domain name system, any given URL will be less and less "universal."
The new additions to the bill include the addition of "interactive computer services" "information location tools" to the list of intermediaries that can be issued and injunction, and the new ability for copyright owners to initiate the enforcement process themselves—at least, as regards ad networks and payment processors.
"Information Location Tools" "Interactive Computer Services:" Much More than Just Search Engines
This addition has often been referred to as the "search engine" portion of the bill, with the idea that it's directed towards search engines that will include infringing sites in search results or sponsored links—a complaint that came up a number of times in Congressional hearings. How this is meant to differ from the existing standards of the DMCA's section 512(d) isn't exactly clear, aside from the fact that the Attorney General is the actor here, not private entities.
But a larger problem lies within this provision—it's not limited to search engines. In fact, it uses a definition with an extremely broad scope—and a scope that has been read broadly by courts for years. "Interactive computer service" is defined in the Communications Decency Act's section 230, which prevents interactive computer services from being held liable for others' speech. Because the CDA was intended to preserve the ready flow of information on the Internet, judges have historically read "interactive computer service" broadly, encompassing ISPs, message boards, blogs, mail services, and lots of other online presences. If the idea behind the new bill is to be better targeted than the old one, this is not a particularly good way to go about it. Using such a broad definition subjects broad swathes of the Internet to this new enforcement mechanism.
In fact, if the scope of "interactive computer services" is as broad under this bill as it is under the CDA, then domain names could just as easily fall back in to the scope of the bill, despite the fact that domain name registries and registrars no longer explicitly appear within it. In some cases at least, the CDA has applied to the providers of domain names. So "exchanging" registries and registrars for interactive computer services might well have broadened, rather than narrowed, the scope of the bill.
Rights Holders as Plaintiffs
Another major addition to the bill is a private right of action, allowing copyright holders to get court orders against payment processors and ad networks, if a site they have links with comes under the scrutiny of the law.
This new provision gives private parties the ability to get injunctions against credit card companies, ad networks, or search engines that serve targeted sites. One of the few upsides of the old bill was the fact that those who trusted the prosecutorial discretion of the government could take solace in the fact that only a foolhardy federal prosecutor would go after the edge cases of Internet entrepreneurs whose business models might be in good faith, though they ruffled the feathers of rightsholders. With the introduction of a private right of action, the injunctions issuing from this bill can now be called forth at the litigious whim of any copyright holder.
We've seen in the past how many rightsholders have abused similar processes, issuing takedown notices regarding public domain works, mothers filming home videos or documentary filmmakers criticizing their work. The same trade organizations pushing for the passage of this bill have yet to admit that users should be able to space-shift works that they have already bought and paid for onto their own devices. How can we expect this newfound power to be wielded by those same interests?
Narrower, but only Relatively
As for tightening things up? The bill no longer lets the Attorney General take action against domestic domain names' registries and registrars, leaving that sort of activity to DHS. And it has at least partially narrowed the definition of what constitutes a site "dedicated to infringing activities." Before, that could have been any site that was could have been criminally liable for infringement, including sites that weren't actively engaging in piracy so much as treading just over the line of what a judge found to be lawful.
What remains of that definition, however, can still encompass good-faith actors and even parties that aren't even infringing copyright. The bill still defines a site as "dedicated to infringing activities" if it is designed or marketed as "enabling or facilitating" actions that are found to be infringing. In other words, even if the site isn't itself infringing copyright, if its actions "enable or facilitate" someone else's infringement, the government can tell ISPs to blacklist your site, and copyright holders can sue to cut your funding.
More of the Same
In the end, the new bill seems much like the old bill. There are changes to its structure, some good, some quite bad, but its basic structure remains the same. In all, it amounts to an acquiescence to the content lobby's idea that everyone whose systems touch their content has a price to pay—if not in direct dollars, then in deputized vigilance on their behalf.
Often, whenever we point out flaws in the DMCA's safe harbor provisions, we hear a reluctance among those who rely upon it to "open it up" for amendment and improvement. The fear, apparently, is that engaging in that discussion will give the record labels and movie studios an opportunity to lobby for themselves and move the goalposts further. The problem with that caution is that those goalposts are being moved today. Even if section 512 of Title 17 doesn't feel Congress's red pen anytime soon, the actual conditions under which Internet companies and users will have to operate are being changed right now. The structure of the Internet itself, and the premises upon which it is based are being negotiated in Congress, and not by those bodies concerned with its structure as a whole, but by those that see the Internet as merely a means of serving up product, or stealing it.
But the Internet is more than just another TV channel or some sort of digital magazine. Not only in what it does—connecting individuals and communities across the world—but how it does it. It relies upon technological consensus among a wide variety of actors to remain a global, unified system, but we're seeing that consensus eroding rapidly as more and more political factions come to understand its power and where the levers are. And no matter how good the intentions of the United States government may be, they will be taken as a model for governments everywhere that seek to cut off from their citizens content and speech they'd rather not have available. This bill accelerates the Internet down that path.