America's copyright scholars speak out against PROTECT-IP bill

David Post, David Levine, and Mark Lemley and a group of more than 90 prominent IP law professors have signed a letter objecting to the far-reaching PROTECT-IP bill, introduced by Senators Leahy, Shumer, Grassley, Feinstein, Whitehouse, Graham, Kohl, Coons and Blumenthal. PROTECT-IP is your basic batshit insane Internet law that would establish a Great Firewall of America that entertainment executives could use to censor the American Internet; it would require PayPal and credit card companies to police the copyright practices of their users; and it would mandate more domain seizures on accusation of copyright infringement.

The copyright scholars who signed the letter argue that PROTECT-IP is unconstitutional, that it jeapordizes the integrity of the Internet and America's standing as a force for free speech in the world.

The Supreme Court has made it abundantly clear that governmental action to suppress speech taken prior to "a prompt final judicial decision . . . in an adversary proceeding" that the speech is unlawful is a presumptively unconstitutional "prior restraint,"1 the "most serious and the least tolerable infringement on First Amendment rights,"2 permissible only in the narrowest range of circumstances. The Constitution "require[s] a court, before material is completely removed from circulation, . . . to make a final determination that material is [unlawful] after an adversary hearing."3

The Act fails this Constitutional test. It authorizes courts to take websites "out of circulation" - to make them unreachable by and invisible to Internet users in the United States and abroad -- immediately upon application by the Attorney General after an ex parte hearing. No provision is made for any review of a judge's ex parte determination, let alone for a "prompt and final judicial determination, after an adversary proceeding," that the website in question contains unlawful material. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.4

And Speaking of the Inalienable Right to the Pursuit of Happiness . . . (via /.)

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  1. These Copyright Scholars should get better at link building. Neither Dave Levine, Mark Lemley, or David Post who wrote the letter have added their name to the Wikipedia entry for Copyright Scholars. You’d think Stanford Law, Elon University or Temple University would have taught them a bit more about branding.

  2. and William Neukom of Stanford Law is better categorized as the leader of the San Francisco Giants MLB ownership group rather than Copyright Scholar of Stanford Law.

  3. My mistake, Bill Neukom just donated the money to create the Stanford Law program that Mark Lemley teaches in.

    1. Bill Neukom worked at Microsoft for many many years as its chief counsel and is a very sharp guy. I don’t think your characterization is any more accurate.

  4. On the plus side, it’s so blatantly unconstitutional that the courts will likely never let it see the light of day if it passes.

  5. Here is what I got back from my senators after voicing my objections to this bill.


    Thank you for contacting me regarding the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act of 2011 (S.968). I appreciate that you took the time to express your views.

    As you may know, this legislation would restrict Internet sites that engage in copyright infringement activities. Offending websites could be forced to stop the infringing activity or face being shut down. I understand the importance of putting a stop to illegal activity on the Internet, and the significant economic damage caused by the theft of intellectual property. However, I also believe in the power of the Internet as an open, innovative space for all Americans. Whether used for commerce or for entertainment, the Internet has provided an avenue for allowing businesses to flourish through instant contact with customers across the globe. We need to find the right balance between protecting intellectual property and promoting the open nature of the Internet.

    The PROTECT IP Act was reported to the full Senate by the Senate Judiciary Committee on May 26, 2011. Rest assured I will keep your thoughts in mind if this bill comes up for a vote on the Senate floor.

    I will continue to listen closely to what you and other Coloradans have to say about matters before Congress, the concerns of our communities, and the issues facing Colorado and the nation. My job is not about merely supporting or opposing legislation; it is also about bridging the divide that has paralyzed our nation’s politics. For more information about my positions and to learn how my office can assist you, please visit my website at http://www.markudall.senate.gov.

    Warm regards,

    —- and ——

    Thank you for contacting me regarding S.968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act. I appreciate hearing from you.

    Let me begin by saying I strongly support safeguarding the intellectual property of all Americans. Intellectual property rights are vital to our economy. Every day that intellectual property is insufficiently safeguarded, American businesses stand to lose billions of dollars that result in the loss of thousands of jobs due to copyright infringement and the sale of counterfeit goods. As you may know, I supported the American Invents Act (S.23), which passed the Senate. This legislation would streamline the patent application process, establish new rules to protect inventors and eliminate unworthy patents, and create consistency for all applicants and patent owners in the application and litigation processes. It provides for the first significant changes to the nation’s patent system in nearly 60 years, and in the process creates jobs and boosts the economy without adding a dime to the deficit. On June 23, 2011, the House of Representatives passed similar legislation, and now these two versions must be reconciled.

    The advent of the Internet has led to countless cultural and economic benefits, and American entrepreneurs should be able to market their products and services online without fear of illegal imitation or distribution. However, the Internet is an open forum for people to freely share content, and I believe it should remain that way as long as it is done in accordance with our laws.

    As you may know, the PROTECT IP Act was introduced by Senator Patrick Leahy of Vermont on May 5, 2011. This legislation would authorize the Attorney General to seek legal action through the courts to combat against Internet sites dedicated to infringing activities. Temporary restraining orders or injunctions may be issued to these sites in addition to court orders to U.S.-based search engines, payment processors, advertising networks, and Internet service providers to stop providing services to blacklisted sites. The bill uses a very narrow definition of an Internet site “dedicated to infringing activities” to include those that have no significant use other than to abuse current copyright and patent laws.

    The PROTECT IP Act received unanimous support from the Senate Judiciary Committee. It now awaits consideration by the full Senate. Rest assured I will keep your thoughts and concerns in mind should this legislation be debated on the Senate floor.

    I value the input of fellow Coloradans in considering the wide variety of important issues and legislative initiatives that come before the Senate. I hope you will continue to inform me of your thoughts and concerns.

    For more information about my priorities as a U.S. Senator, I invite you to visit my website at http://bennet.senate.gov/. Again, thank you for contacting me.

    Sincerely,

    Michael Bennet
    United States Senator

  6. Let’s see. Senators Leahy, Shumer, Feinstein, Whitehouse, Kohl, Coons and Blumenthal are all Democrats. Senators Grassley and Graham are Republicans. Next time you folks complain about the partisanship in politics, remember that this is what bipartisan co-operation looks like: both parties working together to screw you over.

    This is American politics in the early 21st century: the Republicans will screw you one way, the Democrats will screw you another, and bipartisanship means they get together to really screw you. So to my mind, the intense partisanship that normally exists between the two parties, and the gridlock it produces in Congress, is actually the best-case scenario.

    1. American politics in the early 21st century is not really different then in the 20th century. As long as these guys are permitted to serve as long as they want you will continue to see these kinds of special interest legislation. Being from Connecticut I would like to point out that Mr. Blumenthal was just elected to replace Christopher Dodd, who, of course, was recently selected to head up the MPAA. Coincidence? I think not.

  7. As I believe Lewis Black put it, the Republicans are the party of no ideas, and the Democrats are the party of bad ideas. So what happens is the Democrats say “We’ve got a real shitty idea,” and the Republicans say “and we can make it shittier!”

  8. At the risk of sounding unpopular, I don’t see what all the fuss is about. If you don’t want your website shut down, don’t infringe on someone else’s intellectual property. Don’t offer downloads of pirated material.

    Free speech does not mean that I’m free to do whatever I wish with someone else’s words/music/art.

    This bill is heavy handed, and a bit extreme. But what did we expect? This is the logical consequence for a culture which on the whole is incapable or uninterested in acting responsibly and treating the hard work of others with respect.

    1. Ratio, I agree with you.

      I agree with a few of Mr. Son’s criticisms too.

      In the end however, I think a lot of people are more concerned about not be able to get what they want for free anymore than anything else.

  9. I think the third author (in addition to Lemley and Levine) is David Post, not Eugene Volokh.

  10. “If you don’t want your website shut down, don’t infringe on someone else’s intellectual property. Don’t offer downloads of pirated material.”

    Because it’s entirely inconceivable that

    — You could be engaging in “fair use” uses of a property under copyright, but someone accuses you of infringement and down you go, despite your use being legal under current copyright law.
    (Already happens on sites such a Youtube)

    — Someone could LIE about infringement just to get you shut down.
    (Already happens on sites such as Youtube)

    — Current copyright laws could be horribly set up in the first place, and need to be torn down and replaced.
    (An opinion I share)

    — People just want their right to due process upheld.
    (“But you don’t want the pirates to win, do you?!”)

    In short, it’s more complicated than “do bad, get punished, don’t do bad, get left alone”.

  11. People who create works and pay taxes on such income should be paid and protected by law however all large copyright rentiers should be investigated for tax evasion on a regular basis.

    It’s well documented that large copyright rentiers are built around abusive tax shelters like the infamous Double Dutch Sandwich and the newer Double Irish Sandwich.

    It’s a simple cost benefit issue for tax payers. The net cost of catching an unemployed student copyright violator is large but the benefit to society is very small. On the other hand, catching major organized tax cheats results in a very large payoff for society.

    Historically, many countries have considered cheating on taxes during time of war to be Treason and the punishment was public execution. In the US, it doesn’t meet the legal definition of Treason but total forfeiture of all assets and mandatory prison sentences would be reasonable.

  12. RE: Bipartisan? Agreed as to the screwing, but neither Grassley nor Graham should even have an (R) after their names. They’re RINOs, beholding to Washington as usual, not Conservatives or constituents (outside of the 120 days prior to elections). Grassley should retire. And hopefully, So. Carolina will do what they should have done last time and bounce the Pillsbury doughboy for good.

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