Rogue Website Seizure By Department of Justice and a Bumpy Week in Copyright Law

Courtesy Techdirt, a copy of the Megaupload indictment is embedded below. The indictment is against an alleged "rogue website" that allegedly facilitates copyright infringement.

Recently Congress has initiated legislation, the Protect-IP Act ("PIPA") and the Stop Online Piracy Act ("SOPA"). These efforts were purportedly aimed at rogue websites. Critics charged that the laws would permit copyright owners to shut down legitimate websites without due process of law, contained problematic security measures (DNS masking) and would have an overall severe chilling effect on the exercise of First Amendment rights relating to copyright's fair use doctrine, which permits use of copyrighted works for certain purposes. The legislation seems to have stalled in the wake of an internet/tech community uproar, culminating in blackouts by popular websites such as Wikipedia.

Right as all of this was happening, the Justice Department's seized of Megaupload basically doing what SOPA and PIPA proponets claimed they could not do, more from Techdirt on the details here. Breaking news here.

Perhaps most significant was the US Supreme Court's decision in Golan v. Holder (see my last post for a copy). The Supreme Court stated really for the first time that Congress could use the Copyright Clause of the U.S. Constitution to take materials from the public domain.

This is a dramatic and sweeping statement and it will change the battleground in the copyright wars for the decades to come.  I was fortunate enough to attend a luncheon with Maria Pallante, Register of Copyrights, last Thursday in Washington, DC and to discuss the Golan decision with her.  The luncheon was sponsored by the Capitol Hill Chapter of the Federal Bar Association.

78786408-Mega-Indictment




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Stop Online Piracy Act: White House Calls For Rogue Website Legislation, Public Participation in Legislative Process

Below is the response of OMB's IP Czar Victoria Espinel to my signing a petition to Stop Online Piracy Act. Basically, the Administration wants to push ahead with legislation but has agreed with many of the concerns voiced by the public:
Combating Online Piracy while Protecting an Open and Innovative Internet
By Victoria Espinel, Aneesh Chopra, and Howard Schmidt

Thanks for taking the time to sign this petition. Both your words and actions illustrate the importance of maintaining an open and democratic Internet.
Right now, Congress is debating a few pieces of legislation concerning the very real issue of online piracy, including the Stop Online Piracy Act (SOPA), the Protect Intellectual Property Act (PIPA) and the Online Protection and Digital ENforcement Act (OPEN). We want to take this opportunity to tell you what the Administration will support—and what we will not support. Any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet.
While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.
Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.
We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.
Let us be clear—online piracy is a real problem that harms the American economy, threatens jobs for significant numbers of middle class workers and hurts some of our nation's most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response. We should never let criminals hide behind a hollow embrace of legitimate American values.
This is not just a matter for legislation. We expect and encourage all private parties, including both content creators and Internet platform providers working together, to adopt voluntary measures and best practices to reduce online piracy.
So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right. Already, many of members of Congress are asking for public input around the issue. We are paying close attention to those opportunities, as well as to public input to the Administration. The organizer of this petition and a random sample of the signers will be invited to a conference call to discuss this issue further with Administration officials and soon after that, we will host an online event to get more input and answer your questions. Details on that will follow in the coming days.
Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.
Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation. Again, thank you for taking the time to participate in this important process. We hope you’ll continue to be part of it.
Victoria Espinel is Intellectual Property Enforcement Coordinator at Office of Management and Budget
Aneesh Chopra is the U.S. Chief Technology Officer and Assistant to the President and Associate Director for Technology at the Office of Science and Technology Policy
Howard Schmidt is Special Assistant to the President and Cybersecurity Coordinator for National Security Staff


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How the Stop Online Piracy Act Got To Washington and What's Next #SOPA #PIPA

Video from Public Knowledge on the legislative history of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).  Over 71k views on YouTube.

More from Public Knowledge here on the expected cloture vote on January 24 to end the announced filibuster.  Three fifths of the Senate must support cloture (cutting off debate) for the bill to realistically proceed.  Senator Harry Reid is expected to make the cloture motion unless enough opposition arises between now and then.   Many organizations are urging citizens to contact their Senators now to urge opposition.

From Sen. Reid's website here:

Cyber Security to Protect America’s Entrepreneurs from IP Theft: Senate Democrats will seek to enact legislation to enhance our nation’s cyber security and promote the development of a well-educated, well-trained cyber workforce. Improving cyber security across government agencies, critical infrastructure, and the private sector will prevent theft of the intellectual property that is a key engine of the U.S. economy, create a jobs-rich market in security technologies and evaluation, and prevent the cyber attacks that now cost American businesses millions of dollars per year. The legislation will also expand research and development, education, and training programs designed to produce a well-qualified cyber security workforce, a highly competitive tech sector, and the continuing superiority of American innovation.
(highlighting supplied).

What the critics at Public Knowledge say here:

If made law, PIPA (S. 968) would...

• Enable removing access to websites before those websites have the chance to defend themselves in court, raising substantial concerns about the bill's impact on free speech and the First Amendment, and giving rise to a situation that is ripe for abuse.
• Define a number of key terms broadly enough to potentially harm many legitimate and beneficial services. For example, PIPA adds "information location tools" to the list of intermediaries that can be issued an injunction, making nearly every actor on the Internet potentially subject to enforcement.
• Have an unintended impact on the safe harbor status of services like YouTube because they specifically target sites that "enable or facilitate" infringement, and also requires action by third parties such as online service providers, financial transaction providers, and ad networks.
• Create conflicts between DNS servers by requiring the operators of certain domain name servers to blacklist certain DNS requests—you can see the potential for instability in the system.
• This instability could also lead to increased cybersecurity risks, including cyber attacks and identity theft, as users migrate to offshore DNS providers not subject to PIPA's provisions.
• Possibly lead to retaliation by foreign governments to take similar action against U.S. websites.
• Seriously undermine a key value in our foreign policy—how could we, as a country, support openness and access in communication and condemn the use of DNS blocking, when we are doing it ourselves?
• Risk setting a precedent for other countries to justify measures that would hinder online freedom of expression and association.

(highlighting supplied).
Mike Masnick at Techdirt summarizes the actions that are being taken to stop PIPA when Congress gets back in session later this month here and how SOPA is part of Hollywood's history of trying to kill innovation here.

From the U.S. Chamber of Commerce website:
How Do Intellectual Property Rights Drive Innovation?

As Abraham Lincoln said, “the patent system added the fuel of interest to the fire of genius…” IP protections ensure that American scientists, engineers, artists, writers, entrepreneurs and innovators recoup their investment and are rewarded for their work, incentivizing them to develop new ideas.

The patent system is the engine of the idea factory. In exchange for exclusive rights for a limited period of time, the inventor must publicly disclose the technical know-how behind a new invention. This allows other innovators to leverage past discoveries, constantly injecting new ideas into the public domain.

Congress ought to take the time to engage in the meaningful legislative process outlined in Bill Patry's excellent and newly-published How To Fix Copyright, which I reviewed here, with Patry's spirited response here (no Bill, I don't think you're churlish!)

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