In 1998, United States President Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law. The purpose of the legislation was to bolster protection of copyright in a world where piracy and copyright infringement is easier than ever. If you wanted to sell illegal copies of a book 500 years ago, you had to have access to a printing press or have a lot of spare time and immaculate handwriting. These days, a couple of clicks with a mouse can net you an author's entire bibliography in a few moments. Just pop on the Internet and you can distribute those works to millions of people. Piracy has become a very big deal.
While the DMCA gives copyright holders some protection, there are limits to its scope. That's not necessarily a bad thing -- some limitations protect innocent parties. For example, under the DMCA, sites like YouTube are protected if users upload material that infringes upon some other entity's intellectual property. In these cases, the sites are providing a service rather than the content itself.
But there are other limitations to the DMCA that have inspired lawmakers to propose new legislation to fill in some gaps. One big problem is that the Internet is global. When you visit a Web site, the server that hosts the files you're viewing could be on the other side of the world. The United States government has no jurisdiction over computers that exist outside its borders. So how can a copyright holder pursue a complaint if someone in another country steals intellectual property?
In 2011, Senator Patrick Leahy introduced an act in the United States Senate called Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (Protect IP). The purpose of this act is to target Web sites hosted on servers outside the jurisdiction of the United States that perpetuate piracy of United States goods.
Let's take a look at how this proposed legislation tries to combat the problem of piracy.
The Nuts and Bolts of Protect IP
The first part of Protect IP gives the United States attorney general the opportunity to get a restraining order or injunction against any Web site that provides access to pirated content. There are a few limitations to this ability: The site must have a domain name that is used within the United States, and the site must both conduct business within the United States and cause harm to those who hold intellectual property rights within the United States.
Assuming the site fits the criteria, the attorney general would then notify the site of the alleged violation. That's assuming it's possible to track down an address, physical or otherwise, for the site's registrant. But what if a sternly worded notice from a U.S.official isn't enough to convince a Web site to abandon its allegedly wanton ways?
Without a means to punish the site, the bill would have little impact. But how can a United States court punish someone who doesn't reside in the United States? The answer lies in an indirect approach. Instead of shutting down the site directly, Protect IP gives the attorney general and Department of Justice the power to limit access to the site from the United States. It can also cut off the flow of cash from the United States to the site.
Under the terms of Protect IP, the government can order non-authoritative domain name servers, search engines and even social networking services to block traffic to alleged piracy sites. The domain name servers would be required to prevent domain names from resolving into IP addresses. This is the basis for the domain name system (DNS) -- each Web site has its own unique IP address, such as 126.96.36.199. But these addresses aren't easy for us to remember. The DNS maps text to IP addresses so that we don't have to remember the numeric addresses, which can change over time.
Protect IP would require domain name servers to prevent these domain names from resolving to the proper IP addresses. If you tried to navigate to such a site, you might get an error message or even be redirected to a different site -- perhaps the site of a law enforcement agency like the Federal Bureau of Investigation (FBI).
The Department of Justice could also notify financial transaction providers like PayPal or Internet advertising services of the violation and require these companies to cut off payments from people within the United States to the sites. The goal is to deprive piracy sites of revenue so that it's not profitable to host pirated content.
These actions might upset users within the United States. The legislation would protect companies that comply with Protect IP from lawsuits brought against them by users. And if a company resists following the instructions set under Protect IP, it could become the target of the attorney general and be subject to fines.
Many people have criticized Protect IP and the similarly-designed Stop Online Piracy Act (SOPA). In our next section, we'll learn why.
The Problems with Protect IP
One concern critics have raised about Protect IP is that it could harm free speech. For example, the site WikiLeaks is a whistleblower outlet where people can submit documents from government agencies or corporations that reveal unethical or perhaps even illegal activities. Its stated purpose is to provide transparency so that the average Internet surfer can learn what these powerful organizations are up to. Part of the power of WikiLeaks is that it hosts thousands of documents belonging to other organizations. Under Protect IP, WikiLeaks could be in danger of being hamstrung financially and it would be more difficult for someone in the United States to visit the site.
Then there's a fear that messing with the domain name system could compromise a security protocol that's been in development for several years. It's called DNSSEC, and its purpose is to provide end-to-end encryption between two machines on the Internet. If you want to use the Internet to access sensitive data such as medical or financial records, you'd probably want a secure connection and encrypted data so that other people can't snoop on your personal business. DNSSEC helps provide this connection. But if the government requires ISPs to block or redirect traffic to certain domain names, the connections between your machine and the one you're communicating with could be compromised. That's because information doesn't flow in a simple pathway on the Internet -- it's broken down into chunks that travel via different pathways to get to the computer on the other side, where files are reassembled for the user.
Then there's the argument that legislation like Protect IP has little justification. Organizations like the Recording Industry Association of America and the Motion Picture Association of America claim that piracy costs the industry billions of dollars and thousands of jobs each year. Yet, the United States Government Accountability Office published a report in 2010 that revealed it is impossible to determine what the actual damages due to piracy could be. That's because not every person who pirates a piece of content would have otherwise purchased it legitimately. And since digital content can be copied an indefinite number of times, there's no demonstrable loss because the content owner can still sell legitimate copies of the content. It's complicated.
But perhaps the most damaging criticism leveled by critics is that Protect IP wouldn't really stop piracy. While blocking or redirecting domain names would be a nuisance, it's not difficult to get around the problem. You could navigate to sites by typing in the IP address directly. It's not hard to imagine Web sites dedicated to maintaining lists of IP addresses that direct to blocked sites. And users can even navigate to foreign servers to resolve domain names without being blocked or redirected. Several hackers have released extensions for popular Web browsers that will do all the work for users behind the scenes, meaning there will be no noticeable effect on the user experience.
Cutting off funds could potentially impact piracy sites but not all piracy sites are profit-oriented. But this part of Protect IP could be the most effective means for intellectual property holders to protect their interests.
Next, we'll learn about what's happened with Protect IP since it was introduced in the Senate in 2011.
The Fate of Protect IP
In May 2011, the Senate Judiciary Committee approved Protect IP in a unanimous vote. The next move for the legislation was to go to the Senate floor for a general vote. But it faced an opponent -- Senator Ron Wyden of Oregon. Senator Wyden expressed concerns that the bill would harm innovation, hurt the job market and cause other unintended consequences that could do more harm than good. He decided to place a hold on the legislation, delaying the vote until 2012.
As 2011 drew to an end, Wyden renewed his commitment to fighting Protect IP. He said he would filibuster the bill. But what does that mean?
Senate Majority Leader Henry Reid would first have to move the bill toward a vote on the Senate floor, which is called cloture. Cloture creates a 30-hour time limit for debate on a subject, after which at least three-fifths of the Senate must vote in favor to end debate in order to move on to voting on the legislation. If after 30 hours, three-fifths of the Senators don't vote to end debate, the debate could continue indefinitely. If he filibusters, Wyden and senators who feel the same about Protect IP as he does could take up that time saying anything they like, including reading every name off a petition signed by thousands of citizens opposing Protect IP.
At the start of 2012, 40 senators had signed on support for Protect IP. To get the three-fifths majority needed to invoke cloture, at least 20 more senators would have to add support. Without that support, it's likely that the bill would go back into a committee for edits and markups. It could also simply fade away.
In the end, it's clear that piracy is a problem. It definitely impacts revenue even though the actual dollar amount may be impossible to determine. The companies and organizations that lobby the government for legislation protecting them from piracy aren't going to give up if Protect IP fails. It falls to senators and representatives to learn as much as they can about how the Internet works so that they can make the right decisions. It also falls to U.S. citizens letting their own opinions be known by contacting their respective Senators and Representatives.
To learn more about the U.S. government, the Internet and censorship, follow the links on the next page.
More Great Links
- Anderson, Nate. "Blacklists, ahoy! PROTECT IP Act sails on to Senate floor." Ars Technica. May 26, 2011. (Dec. 29, 2011) http://arstechnica.com/tech-policy/news/2011/05/blacklists-ahoy-protect-ip-act-sails-on-to-senate-floor.ars
- Anderson, Nate. "Sen. Ron Wyden places a "hold" on the PROTECT IP Act." Ars Technica. May 26, 2011. (Dec. 29, 2011) http://arstechnica.com/tech-policy/news/2011/05/sen-ron-wyden-to-place-a-hold-on-the-protect-ip-act.ars
- DeCarlo, Matthew. "Two Firefox add-ons already bypass SOPA's domain censorship." TechSpot. Dec. 22, 2011. (Dec. 27, 2011) http://www.techspot.com/news/46767-two-firefox-add-ons-already-bypass-sopas-domain-censorship.html
- DNSSEC.net. (Dec. 27, 2011) http://www.dnssec.net/
- ErnstFriedman, Jeffrey. "Sponsors of SOPA Act Pulled in 4 Times as Much in Contributions from Hollywood as from Silicon Valley." MapLight. Dec. 19, 2011. (Dec. 22, 2011) http://maplight.org/content/72896
- Masnick, Mike. "How Senator Wyden's PIPA Filibuster Will Work, And What Harry Reid Will Try To Do To Kill It." TechDirt. Jan. 4, 2012. (Jan. 9, 2012) http://www.techdirt.com/articles/20120103/03294817257/how-senator-wydens-pipa-filibuster-will-work-what-harry-reid-will-try-to-do-to-kill-it.shtml
- McCullagh, Declan. "How SOPA would affect you: FAQ." CNET. Dec. 21, 2011. (Dec. 22, 2011) http://news.cnet.com/8301-31921_3-57329001-281/how-sopa-would-affect-you-faq/
- McCullagh, Declan. "Vint Cerf: SOPA means 'unprecedented censorship' of the Web." CNET. Dec. 15, 2011. (Dec. 22, 2011) http://news.cnet.com/8301-31921_3-57344028-281/vint-cerf-sopa-means-unprecedented-censorship-of-the-web/
- Open Congress. "PROTECT IP Act of 2011." (Dec. 29, 2011) http://www.opencongress.org/bill/112-s968/text
- Plumer, Brad. "Everything you need to know about Congress's online piracy bills, in one post." The Washington Post. Dec. 16, 2011. (Dec. 22, 2011) http://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-congresss-online-piracy-bills-in-one-post/2011/12/16/gIQAz4ggyO_blog.html
- Romm, Tony. "Ron Wyden vows fight over PROTECT IP Act." Politico. Dec. 18, 2011. (Jan. 2, 2012) http://www.politico.com/news/stories/1211/70614.html
- United States Government Accountability Office. "Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods." April 2010. (Dec. 22, 2011) http://www.gao.gov/new.items/d10423.pdf