[kictanet] New US E-PARASITE Act Worrying

Fri Oct 28 11:43:10 EAT 2011

By putting out this kind of legislation (especially if it ever passes into
law), the US could loose the moral authority to speak against similar
legislation being proposed in emerging markets.

PROTECT IP Renamed E-PARASITES Act; Would Create The Great Firewall Of
Americafrom the *censorship-galore* dept

As was unfortunately
expected<http://www.techdirt.com/articles/20111025/08343716500/house-trying-to-rush-through-its-version-protect-ip-tech-industry-asks-why.shtml>,
the House version of PROTECT IP has been released (embedded below) and it's
*ridiculously bad*. Despite promises from Rep. Goodlatte, there has been no
serious effort to fix the problems of the Senate bill, and it's clear that
absolutely no attention was paid to the significant concerns of the tech
industry, legal professionals, investors and entrepreneurs. There are no two
ways around this simple fact: this is an attempt to build the Great Firewall
of America. The bill would require service providers to block access to
certain websites, very much contrary to US official positions on censorship
and internet freedom, and almost certainly in violation of the First
Amendment.

Oh, and because PROTECT IP wasn't enough of a misleading and idiotic name,
the House has upped the ante. The new bill is called: "the Enforcing and
Protecting American Rights Against Sites Intent on Theft and Exploitation
Act" or the E-PARASITE Act (though, they also say you can call it the
"Stopping Online Piracy Act").

The bill is big, and has a bunch of problems. First off, it *massively* expands
the sites that will be covered by the law. The Senate version at least tried
to limit the targets of the law (but not the impact of the law) on sites
that were "dedicated to infringing activities" with no other significant
purposes (already ridiculously broad), the new one just targets "foreign
infringing sites" and "has only limited purpose or use other than"
infringement. They're also including an "inducement" claim not found
elsewhere in US regulations -- and which greatly expands what is meant by
inducement. The bill effectively takes what the entertainment industry *
wanted* the Supreme Court to say in Grokster (which it did not say) and puts
it into US law. In other words, any foreign site declared by the Attorney
General to be "inducing" infringement, with a very broad definition of
inducing, can now be censored by the US. With no adversarial hearing. Hello,
Great Firewall of America.

And while defenders of this bill will insist it's only designed to target
truly infringing sites, let's just recall a small list of sites and
technologies the industry has insisted were all about infringement in the
past: the player piano, the radio, the television, the photocopier, the
phonograph, cable tv, the vcr, the mp3 player, the DVR, online video hosting
sites like YouTube and more. All of these things turned out to be huge boons
for the industry. And yet, with a law like this in place, the old industry
gets to kill off technologies they don't understand. Scary stuff.

And it's not just foreign sites impacted by this law (despite what
supporters would have you believe). It appears to expand who would have to
take on the entire burdens of enforcing this blacklist -- broadly naming
"service providers" as defined in the DMCA. That's significant, because a
big part of this bill is to undermine and strip away the safe harbors of the
DMCA. The DMCA set up an important balance that gave online service
providers freedom from liability if they pulled down content upon
notification. This new bill provides a massive and ridiculous burden:
allowing the Attorney General to create an internet blacklist that all
service providers will need to block access to:

*A service provider shall take technically feasible and reasonable measures
designed to prevent access by its subscribers located within the United
States to the foreign infringing site (or portion thereof) that is subject
to the order, including measures designed to prevent the domain name of the
foreign infringing site (or portion thereof) from resolving to that domain
name’s Internet Protocol address. Such actions shall be taken as
expeditiously as possible, but in any case within 5 days after being served
with a copy of the order, or within such time as the court may order.*

On top of that, the bill says any attempt to get around such blocks can lead
to liability. Would this put liability on things like MAFIAAfire? It sure
sounds like it:

*To ensure compliance with orders issued pursuant to this section, the
Attorney General may bring an action for injunctive relief....

against any entity that knowingly and willfully provides or offers to
provide a product or service designed or marketed for the circumvention or
bypassing of measures described in paragraph (2) and taken in response to a
court order issued pursuant to this subsection, to enjoin such entity from
interfering with the order by continuing to provide or offer to provide such
product or service.*

While the text of the bill insists that nothing in it takes away the DMCA's
safe harbors, once again this is a claim without the facts to back it up. A
large part of the bill is an effective attempt to strip away the DMCA's safe
harbors.

The only *extraordinarily minor* change against the interests of the
entertainment industry is that the bill ever so slightly changes the
"private right to action," which allows individual copyright holders to take
action under this bill. This was a big problem in the old bill, and the only
requirement here is that prior to making use of this private right to
action, copyright holders have to provide "notice" to payment processors and
ad providers. But then those service providers are expected to take action
anyway, or face liability. So all this really does is take the court out of
the process, and make it even easier for copyright holders to effectively
kill off sites they don't like.

Think about this for a second: think how many bogus DMCA takedown notices
are sent by copyright holders to take down content they don't like. With
this new bill, should it become law, those same copyright holders will be
able to cut off advertising and payment processing to such sites. Without
court review.

And... because this bill wasn't already ridiculously bad enough, it
*also* lumps
in a House version of the felony streaming
bill<http://www.techdirt.com/search.php?q=s.978&eid=&tid=&aid=&searchin=stories>
that
will make huge swaths of Americans felons for streaming content online.

This bill is an abomination and an insult to the Constitution. It's
unfortunate that Rep. Lamar Smith thinks this is worth introducing in its
current state, and anyone who signs on to co-sponsor is effectively
supporting mass censorship of the internet in the US, as well as the
criminalization of huge numbers of Americans -- while putting a huge burden
on the one part of the economy that actually is creating jobs. All because a
few legacy companies in the entertainment industry refuse to adapt.

http://www.techdirt.com/articles/20111026/12130616523/protect-ip-renamed-e-parasites-act-would-create-great-firewall-america.shtml

Kind regards,

*Muchiri* Nyaggah

Principal Partner

@muchiri

+254 722 506400

Semacraft.com
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