PublishedSeptember 29, 2010

Internet Heavweights, Consumer, Library, Tech Associations Raise 1st Amendment Concerns About Infringement Bill

Senate Judiciary Committee leaders and staff are getting an earful from a broad coalition of tech companies, consumers’ groups and Internet engineers about a newly introduced bill it hoped to markup this week that would give the DOJ a new tool to essentially shut down domains accused of copyright infringement.

Tech companies and consumer, library and privacy groups sent a letter to Senate Judiciary committee leadership Monday, asking them to consider how proposed copyright enforcement measures in S. 3804 would impact free speech on the Internet before the Senate Judiciary Committee votes on the newly introduced bill. A markup had been scheduled for Thursday.

Even though protecting intellectual property rights is an ostensibly good goal, setting up this type of control and policing system mirrors the Internet filtering and censoring systems the United States is fighting around the world – in countries like Thailand, Iran and China.

Earlier this year the State Department vowed to fight Internet censorship and said Internet freedom is the modern equivalent of the right to assemble. The letter to Leahy asks that the serious questions about preserving free speech, due process and Internet freedom at least be reviewed during a hearing “before any major legislative action.”

Currently, rightsholders can request copyrighted material be taken down, but the new law would encourage shut downs of entire domains to prevent access to material that could be an intellectual propert infringement. The legislation would direct the Justice Department to create a “blacklist” of websites allegedly distributing copyrighted content illegally. Internet Service Providers could, and may have to deny those websites service to avoid liability.

Given the recent slew of political candidates whose websites faced copyright violation charges for campaign videos, it may be interesting to see what happens when IP enforcement comes crashing against the right to political communication. Imagine the howls if this law proceeds and a candidate’s website is blacklisted and shut down. Sure, there is an appeals process, but that takes time and ISPs receive immunity for denying access during that time. That could have a real impact on a campaign while lawyers sort out fair use questions, likely to happen well after an election cycle. Sen. John McCain, R-Ariz., had to deal with this during his presidential campaign, so it will be interesting to see if he opposes this measure.

The election should be a reminder to politicians and constituents alike that our democracy is more critical than a zero tolerance enforcement policy — but we’re not seeing outward signs of cost/benefit reasoning here.

Unlawfully distributing content on the Internet is wrong. But CCIA, the Consumer Electronics Association, Center for Democracy and Technology, the American Library Association and various other consumer and privacy rights groups are concerned a government blacklist would be akin to using an assault rifle to combat mosquitoes – and would create diplomatic challenges that go beyond pesky. While our government may use its blacklist for copyright violations, other countries may create a blacklist of websites for promoting democracy or human rights and ask ISPs for the same enforcement mechanisms.

Opposition appears to be growing. A group of big name Internet engineers also wrote to the committee, saying they had deep concerns about the impact of the proposed legislation.

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