By Eduardo M. Peñalver, Professor of Law, Cornell Law School
If one definition of insanity is doing the same thing over and over while expecting a different result, then the “Protect IP Act” surely counts as confirmation (as if any were needed at this point) that our IP system and its beneficiaries have become genuinely unhinged. The bill’s name is supposedly short for the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011,” but can anyone doubt that the sponsors came up with the acronym first and then brainstormed ways to generate it? It is backed by the usual industry suspects, including the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and Viacom.
Protect IP attempts to provide new legal tools for going after websites located outside the United States who post infringing material. Sponsored by (among others) Democratic Senator Patrick Leahy, it empowers federal courts to, in effect, “disappear” web sites that are “dedicated to infringing activities.” Most significantly, the bill creates a procedure by which the Department of Justice can bring an action in federal court to request an order that, if granted, it can then use to compel domain name servers, search engines, and even (arguably) websites that link to the offending site, to delete references to the blacklisted site, apparently with the aim of making it impossible for users to reach the infringing content.
Much of the criticism of the proposed law has focused on the vagueness of its terms and the threat this may pose to First Amendment values. What does it mean for a site to be “dedicated to infringing activities”? Would the law, for example, make it possible for the U.S. government to block access to WikiLeaks by, among other things, punishing anyone who links to the site? Commentators have also criticized the lack of procedural safeguards before a blacklist order may issue. Although I agree with all of these concerns, I am more interested in the evidence the bill provides that a significant contingent of content providers (and therefore members of Congress eager to do their bidding) remain convinced that the solution to the problem of online piracy lies in reflexively ratcheting up the legal sanctions for infringement.