Copyhype

A good bill just got better. On May 12, Senator Patrick Leahy and other Senate Judiciary Committee members introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act). The text of the bill is available here.

The bill is designed to advance two goals: enhancing the enforcement against overseas rogue websites and taking the profit out of piracy. It allows those ad servers and payment processors who only want to count legitimate businesses as their customers to cut off service to rogue sites without risking liability, and it encourages providers that are less inclined to cut off customers using their services for illegitimate purposes to act more responsibly.

This legislation is important in ensuring that laws protecting the progress of the arts and sciences keep up with the rapid progress of digital communications. A wide cross-section of the public recognizes this importance. In A Broad Coalition Indeed!, Kate Spence of the MPAA lists a few of the many organizations, unions, and trade associations that support the bill. The Copyright Alliance provides links to public statements in support of the bill in Join the Chorus: Voices Against Digital Theft. And, just a few days ago, forty-two state Attorneys General announced their support of the bill.

The PROTECT IP Act is a substantial rewrite of last session’s Combating Online Infringement and Counterfeits Act (COICA). The impact of provisions on existing secondary liability doctrine and the DMCA is made more explicit. Procedural protections for operators of web sites and third-party providers served with orders under the act are beefed up. Most notable is the addition of a private right for action under the law, though court orders by an individual rights holder are limited to financial service providers and advertising providers — court orders requiring search engines and domain name system servers to block access to a web site can only be made in actions initiated by the Attorney General, and even then are limited only to nondomestic domain names.

Perhaps one of the biggest changes from COICA is PROTECT IP’s requirement for the Attorney General or rightsholder to file a personal action against a registrant of a rogue site before proceeding against the domain name. Under COICA, the Attorney General could go straight to an in rem action against the domain name. The provision:

(2) IN REM.—If through due diligence the Attorney General is unable to find a person described in subparagraphs (A) or (B) of paragraph (1), or no such person found has an address within a judicial district of the United States, the Attorney General may commence an in rem action against a nondomestic domain name used by an Internet site dedicated to infringing activities.

Note that this provision is the same under both sections 3 and 4 of the Act; that is, an individual rights holder can only pursue a claim under the Act against a personal defendant. In rem actions remain solely within the Attorney General’s power.

It’s also worth noting that this provision is reminiscent of the language of the Anticybersquatting Consumer Protection Act, passed in 1999 as part of the Trademark Act.

(A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if— … (ii) the court finds that the owner— (I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or (II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1). ¹15 USC § 1125(d)(2).

The PROTECT IP Act includes a provision for the development of guidelines, largely similar to a provision in COICA, for the Department of Justice, law enforcement agencies, and intellectual property rights holders regarding the implementation of the act. It also provides for two separate reports to measure the effectiveness of the bill after it is enacted:

(1) REPORT ON EFFECTIVENESS OF CERTAIN MEASURES.—Not later than 1 year after the date of enactment of this Act, the Secretary of Commerce, in coordination with the Attorney General, the Secretary of Homeland Security, and the Intellectual Property Enforcement Coordinator, shall conduct a study and report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the following:

(A) An assessment of the effects, if any, of the implementation of section 3(d)(2)(A) [required actions for operators of nonauthoritative domain name system servers] on the accessibility of Internet sites dedicated to infringing activity.

(B) An assessment of the effects, if any, of the implementation of section 3(d)(2)(A) on the deployment, security, and reliability of the domain name system and associated Internet processes, including Domain Name System Security Extensions.

(C) Recommendations, if any, for modifying or amending this Act to increase effectiveness or ameliorate any unintended effects of section 3(d)(2)(A).

(2) REPORT ON OVERALL EFFECTIVENESS.— The Register of Copyrights shall, in consultation with the appropriate departments and agencies of the United States and other stakeholders—

(A) conduct a study on—

(i) the enforcement and effectiveness of this Act; and

(ii) the need to modify or amend this Act to apply to emerging technologies; and

(B) not later than 2 years after the date of enactment of this Act, submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on—

(i) the results of the study conducted under subparagraph (A); and

(ii) any recommendations that the Register may have as a result of the study.

Cut and Paste

Anyone reading the proposed bill will be struck by the similarities between sections 3 and 4. I was curious about how closely the two mirrored each other, so I worked up a side-by-side comparison, which I’ve included below in a PDF. Differences are highlighted in red, while language only appearing in one of the sections is highlighted in yellow.

[scribd id=55679464 key=key-p1p2uj8th023u48ugcs]

After comparing the two sections like this, my curiousity was piqued even further. As you can see, aside from the fact that the first section deals with nondomestic domains, which only the Attorney General can proceed against, while the second deals with all domains, which the Attorney General or rights holders can proceed against, the vast majority of the provisions are exact duplicates. Even more curious, there are a tiny number of insubstantial differences in the two — compare (3)(d)(C)(ii), (3)(d)(3), (3)(e)(3), and (3)(f)(2)(A) to (4)(d)(2)(B)(ii), (4)(d)(3), (4)(e)(3), and (4)(f)(2)(A). If these sections were simply cut and paste, we would expect zero differences in the similar language; if they were written independently, we should expect differences throughout the same provisions. But instead, the language is identical except in four (that I’ve found) instances.

My larger question is, why is the bill drafted in this way? I agree that juggling the differences between the two provisions might result in some inelegant language, but separating them out like this — resulting in lengthy, duplicative provisions — seems like far less elegant drafting. My best guess is that there is a substantive reason for drafting the law in this fashion, but I’m hard-pressed to think of exactly what the reason would be. Planning for severability to mitigate the effects of a court striking down any provision in the future? That still doesn’t strike me as especially convincing, though, so I’d be interested to hear thoughts from my readers on this.