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 Am
erica (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.
It is ironic that the Protect IP Act is being discussed at the same time that Netflix has opted to dramatically increase its fees amidst rising complaints about the poor quality of its selection of movies available for online streaming. BigChampagne CEO Eric Garland has argued that Netflix may have raised its rates in order to stoke a consumer backlash that might increase the pressure on the studios to release more first-run content for streaming media. As Garland warned in a recent interview, “if [tech savvy, younger viewers] abandon Netflix in favor of something more generous (read: pirate sites) they will abandon Netflix in favor of something less lucrative for Hollywood. If the youngest customers abandon Netflix, they're going to the gray market. Hollywood can't have that.” As much as the offshore websites targeted by the Protect IP Act, blame for online piracy goes to the industry’s continuing failure to provide legitimate options for consumers to obtain convenient online access to premium content.
The penalties for copyright infringement have long been draconian. And yet, despite this, it is iTunes that has done far more to combat online music piracy than the RIAA’s disastrous policy of suing music file-sharers. The same would likely prove true for other forms of content. Reasonably priced, convenient online content will attract the majority of consumers who don’t want to spend their time trolling for unreliable pirated copies. Rather than dreaming up new legal sticks they can use to protect their intellectual property, content owners should consider how they might fight piracy by doing a better job of satisfying consumer demand.
[image via gurdonark]
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