Senate Bill Gives Feds Power to Order Blacklisting of Piracy Sites

By David Kravets   May 12, 2011  |  6:02 pm 

Senate antipiracy legislation introduced Thursday would dramatically increase the government's legal power to disrupt and shutter websites "dedicated to infringing activities."

A major feature of the Protect IP Act, introduced by 11 senators of all stripes, would grant the government the authority to bring lawsuits against these websites, and obtain court orders requiring search engines like Google to stop displaying links to them.

"Both law enforcement and rights holders are currently limited in the remedies available to combat websites dedicated to offering infringing content and products," said Sen. Patrick Leahy (D-Vermont), the bill's main sponsor.

The proposal is an offshoot to the Combating Online Infringement and Counterfeits Act introduced last year. It was scrapped by its authors in exchange for the Protect IP Act in a bid to win Senate passage.

Under the old COICA draft, the government was authorized to obtain court orders to seize so-called generic top-level domains ending in .com, .org and .net. The  new legislation, with the same sponsors, narrows that somewhat.

Instead of allowing for the seizure of domains, it allows the Justice Department to obtain court orders demanding American ISPs stop rendering the DNS for a particular website - meaning the sites would still be accessible outside the United States.

Either way, though, the legislation amounts to the holy grail of intellectual-property enforcement that the recording industry, movie studios and their union and guild workforces have been clamoring for since the George W. Bush administration.

"As the guilds and unions that represent 400,000 creators, performers and craftspeople who create the multitude of diverse films, television programs and sound recordings that are enjoyed by billions of people around the world, we unequivocally support this bill which, by providing protection for our members' work, clearly shows that our government will not condone or permit the wholesale looting of the American economy and American creativity and ingenuity - regardless of how that looting is disguised on the internet to fool the American consumer," (.pdf) a host of unions said Wednesday, including the American Federation of Musicians, American Federation of Television and Radio Artists and the Directors Guild of America.

The new bill also gives content owners more rights than the old bill. It would allow rights holders to seek court orders instructing online ad services and credit card companies from partnering with the infringing sites - a power the government is granted in either legislative version.

Only the government gets the DNS blocking powers. And the Digital Millennium Copyright Act already grants rights holders the ability to demand search engines to stop displaying search results linking to infringing sites.

Despite the new bill watering down the United States' reach, the government has been invoking an asset-forfeiture law to seize generic top-level domains of infringing websites under a program called Operation in Our Sites." It began last year, and the Department of Homeland Security has targeted 120 sites.

Abigail Phillips, a copyright attorney at the Electronic Frontier Foundation, said because of Operation in Our Sites, the DNS changeover "doesn't seem all that meaningful."

Sherwin Siy, deputy legal director at Public Knowledge, noted that the measure does not narrowly define the websites that could be targeted.

"The bill still defines a site as 'dedicated to infringing activities,' if it is designed or marketed as 'enabling or facilitating' actions that are found to be infringing," he said. "In other words, even if the site isn't itself infringing copyright, if its actions 'enable or facilitate' someone else's infringement, the government can tell ISPs to blacklist your site, and copyright holders can sue to cut your funding."


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