There is no doubt that theft of intellectual property through the Internet is a problem. There is no doubt that owners of intellectual property lose lots of money every year because their works are pirated. Everybody agrees that this theft is bad for the United States economy. But what can be done about it? A bill currently pending in the U.S. Senate, United States Senate Bill S.968, also known as the Protect IP Act, offers a solution, but is this cure worse than the disease?
A consortium of intellectual property, Internet law, innovation, and First Amendment professors have rallied together to prevent passage of the bill. One hundred eight professors have signed a letter addressed to Congress decrying the Protect IP Act. They claim that the act is unconstitutional, that it runs counter to U.S. foreign policy, and that it inhibits freedom on the Internet worldwide.
The professors claim that the Act would allow judges to impose the “Internet death penalty” on domains merely accused of infringing activities, even in cases where the domain owner had no knowledge that a case had been filed against it. The contents of the Act provide provisions that would require Internet service providers and name servers to refuse to recognize the domains accused of infringing. Search engines would be prohibited from linking to the allegedly infringing site. Credit card companies and advertisers could no longer conduct business with the owners of the suspected site.
While “Internet death penalty” may seem like a dramatic term, it is precisely what could be imposed on domain name owners if this legislation becomes law. And while there is not necessarily a problem with killing websites that infringe upon other’s intellectual property rights, this bill is flawed for at least two reasons. It allows the killing to begin before the domain name owner has even had a chance to defend itself in court and it requires third parties to conduct the murder.
The bill allows a website to be suffocated based solely on evidence presented by the party that has allegedly been harmed by the website. This is undeniably a violation of the First Amendment. Of course, if it later turns out that the allegations cannot be supported, the pillow will be removed from the now blue face of the vindicated domain name owner. But how much permanent damage will have already been inflicted?
Even if the penalties are not imposed until after the infringing domain owner has had a final judgment entered against him, the bill goes too far in mandating death by third party censorship of the offending domain name. Rather than simply ordering infringers to stop their infringing activities, third parties would be required to cut off life support to the offending domain names. Credit card companies and advertisers would be required to consult with a list of blackballed domain names before conducting business with any domain name owner. No first aid provided to those on the list.
The theft of intellectual property over the Internet is a very real problem. However, mandating a solution that violates our First Amendment rights is surely not the answer. Neither is government mandated censorship. The United States should not join other regimes throughout the world that are criticized for limiting the content their citizens may view on the Internet. Surely we can find a more effective way to protect intellectual property than government imposed censorship.