Since the introduction of the PROTECT IP Act we frequently see articles and blog posts that severely mischaracterize and make false assertions about the legislation. For example, today we noticed a piece that claimed that the PROTECT IP bill would be a detriment to entrepreneurship. As an organization that represents individual artists and creators, who are themselves entrepreneurs and small businesses, we share the author's concern for entrepreneurship and economic growth. The creative sector in the United States, which is comprised largely of people you would consider the copyright owner next door, accounts for 11.1 million jobs across the country. Unfortunately his portrayal of the PROTECT IP bill is factually inaccurate in virtually every respect.
To begin, the bill does not apply to sites with “a page of illegal content” as the author suggests. The bill addresses only sites that are dedicated to infringement. This is defined narrowly as sites that “have no significant use” other than infringement – a test derivative of the standard announced by the Supreme Court in the Sony Betamax case, which has long been recognized by consumer electronics and information technology companies as the appropriate standard for distinguishing infringing products from staple articles of commerce.
Second, the bill does not allow copyright owners to “petition the court to make sites invisible to people in the U.S.” or the “right to rip sites from DNS.” The bill only allows the Attorney General to seek an order from a court that would allow the AG to ask search engines to use commercially reasonable means to make sites that the court has determined are “dedicated to infringement” inaccessible to U.S consumers. There is no parallel private right of action in the bill.
Likewise, the bill does not lack due process, establish any new procedural rules for adjudicating a case, or tamper with any applicable burdens of proof. The judicial proceeding is conducted according to the Federal Rules of Civil Procedure – the same process used to conduct every other civil proceeding in the Federal courts. Noted Constitutional scholar Floyd Abrams has provided two separate analyses of the legislation to the Senate judiciary committee, which conclude that the bill is fully consistent with due process, and has no negative impact on First Amendment rights (read them here and here.)
Perhaps most disturbing, however, is the author’s suggestion that the PROTECT IP Act “is certain to cause problems for entrepreneurs”. The bill in question targets foreign websites that are dedicated to infringement. In other words, websites whose only significant purpose and use is selling or transferring pirated or counterfeited U.S. products. These are criminal enterprises that are profiting from the work of America’s small businesses, artists, authors and entrepreneurs, and that would be subject to felony criminal proceedings (not just civil injunctive relief) if they committed these same acts in the brick and mortar world. That sort of activity does not fall under any definition of entrepreneurship.