Over 100 professors who teach and write about intellectual property, Internet law, innovation, and the First Amendment are urging the members of Congress to reject the PROTECT-IP Act of 2011 (S. 968). The bill would give the government sweeping authority to take websites offline, remove websites from search engines, and bring infringement claims against Internet publishers.
The professors have signed onto a letter written by Stanford Law School’s Mark A. Lemley, the William H. Neukom Professor of Law and director of the Stanford Program in Law, Science & Technology; David Levine, assistant professor of Law at Elon University School of Law and an affiliate scholar at the Center for Internet and Society (CIS); and David Post, professor of law at the Temple University Beasley School of Law. The letter outlines the group’s concerns that the bill, as proposed, is unconstitutional and potentially disastrous to the structure of the Internet and to U.S. thought leadership.
The following is an excerpt of their statement:
Although the problems the Act attempts to address – online copyright and trademark infringement – are serious ones presenting new and difficult enforcement challenges, the approach taken in the Act has grave constitutional infirmities, potentially dangerous consequences for the stability and security of the Internet’s addressing system, and will undermine United States foreign policy and strong support of free expression on the Internet around the world.
The Act would allow the government to break the Internet addressing system. It requires Internet service providers, and operators of Internet name servers, to refuse to recognize Internet domains that a court considers “dedicated to infringing activities.” But rather than wait until a Web site is actually judged infringing before imposing the equivalent of an Internet death penalty, the Act would allow courts to order any Internet service provider to stop recognizing the site even on a temporary restraining order or preliminary injunction issued the same day the complaint is filed. Courts could issue such an order even if the owner of that domain name was never given notice that a case against it had been filed at all.
The Act goes still further. It requires credit card providers, advertisers, and search engines to refuse to deal with the owners of such sites. For example, search engines are required to “(i) remove or disable access to the Internet site associated with the domain name set forth in the court order; or (ii) not serve a hypertext link to such Internet site.” In the case of credit card companies and advertisers, they must stop doing business not only with sites the government has chosen to sue but any site that a private copyright or trademark owner claims is predominantly infringing. Giving this enormous new power not just to the government but to any copyright and trademark owner would not only disrupt the operations of the allegedly infringing web site without a final judgment of wrongdoing, but would make it extraordinarily difficult for advertisers and credit card companies to do business on the Internet.
Remarkably, the bill applies to domain names outside the United States, even if they are registered not in the .com but, say, the .uk or .fr domains. It even applies to sites that have no connection with the United States at all, so long as they allegedly “harm holders” of US intellectual property rights.
Read the letter in its entirety (includes signatories).