Status Report: PROTECT IP Act of 2011

By Mike Moberly

May 12th marked the introduction of the “PROTECT IP Act of 2011,” designed to address “online threats to economic creativity and theft of intellectual property.” 

If passed, the Act would grant the Department of Justice the ability to obtain court orders requiring Internet service providers (ISP’s) and search engines to block Internet traffic to web sites that commit copyright infringement: (a) copyright holders would be able to obtain court orders requiring payment processors and online advertisers to stop doing business with the infringing web sites; (b) domain name servers would be ordered to blacklist suspected infringing sites; and (c) search engines would be ordered to remove links in their index to an allegedly infringing web site

Of course, no bill escapes criticism, and there seems to be plenty of for the PROTECT IP Act.

  • What constitutes an infringing web site? If WikiLeaks were accused of distributing copyrighted content, U.S. search engines could conceivably be served a court order to block search results pointing to Wikileaks.
  • Is it constitutional? Requiring search engines to remove links to an entire web site due to an infringing page would certainly raise free speech concerns regarding lawful content hosted elsewhere on the site. And,
  • What happened to the presumption of innocence? An injunction could be issued prior to notifying the allegedly infringing site.
Major supporters of the PROTECT IP Act include the Recording Industry Association of American (RIAA), MPAA, U.S. Chamber of Commerce, Wal-Mart, J&J, Disney, Pfizer, Sony, as well as professional sports organizations.  Bill supporters believe that many of illegal content web sites targeted by this bill operate off-shore and will remain largely out of reach of US prosecutors without the PROTECT IP Act.

Two weeks after the bill was introduced, Senator Wyden put a hold on the bill, as he did in 2010 to its predecessor. He said, “I understand and agree with the goal of the legislation, to protect intellectual property and to combat commerce in counterfeit goods, but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective.  At the expense of legitimate commerce, PROTECT IP Act’s prescription takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective.  The collateral damage of this approach is speech, innovation and the very integrity of the Internet.”

The Senate looks to want to hear the debate, as they voted to override the "hold" and move the Bill to the Senate floor.