|Myth Versus Fact: Debunking Dishonest and Inaccurate Claims Against Congressional Legislation to Stop Online Piracy|
By Timothy H. Lee
Thursday, December 15 2011
Here’s something on which reasonable people agree: Internet piracy by foreign rogue websites constitutes a malignant, persistent and costly menace to America’s economy and intellectual property (IP).
Sadly, however, opponents of Congressional legislation to address that menace have waged a campaign extensively contaminated by myth, misstatement and outright dishonesty.
Today, businesses reliant upon IP account for 60% of American exports, which are by nature more vulnerable to foreign piracy. Those businesses also employ almost 20 million workers, pay their employees an average wage 60% higher than non-IP counterparts and produced almost $8 trillion worth of goods and services in 2008 alone. That latter amount surpasses the gross domestic product (GDP) of every other nation on the face of the Earth.
Meanwhile, parasitic overseas websites continue to threaten that IP wellspring of innovation, jobs and prosperity. Foreign IP piracy now amounts to a $650 billion cumulative enterprise, one that inflicts $360 billion in loss annually and now accounts for approximately 25% of all Internet traffic.
Domestic IP theft is already subject to prosecution, but foreign piracy remains largely beyond American legal recourse.
To finally address that gap, the Senate introduced the PROTECT IP Act earlier this year with the support of such people as Marco Rubio (R – Florida), which achieved unanimous Senate Judiciary Committee support. Likewise, the House of Representatives introduced the Stop Online Piracy Act, otherwise known as “SOPA,” with the support of such people as Marsha Blackburn (R – Tennessee) and Lamar Smith (R – Texas).
Critics of the legislation do not deny the threat of online piracy by foreign sites or offer much by way of solutions, and instead level several broad falsities to advance their agenda.
Myth: These proposed statutes “would go so far to protect copyright that they would strangle the Internet with regulation.”
Reality: The legislation targets sites that would already “be subject to seizure in the United States … if such site were a domestic Internet site,” or that are primarily designed or operated for the purpose of violating existing federal laws. Obviously, no Internet site possesses the right to pirate the intellectual property of others, so it hardly makes sense to claim that targeting such sites would somehow mean the end of the Internet. But more broadly, online piracy by domestic sites is already illegal, yet somehow the Internet has managed to survive in America.
Myth: SOPA or PROTECT IP somehow fail to provide due process and “give the federal government and Hollywood studios the right to censor and shut down websites.”
Reality: In order to obtain relief, prosecutors or private parties would have to petition courts for relief as with any other legal proceeding, with the panoply of due process protections. For instance, aggrieved parties would have to provide notice of the alleged violation to the targeted site, which would then have the opportunity to rebut the allegations and present evidence. Moreover, Federal Rule of Civil Procedure 65 would apply just as in any other legal proceeding to obtain injunctive relief. That means that relief could only be granted after demonstrating “specific facts” showing “immediate and irreparable injury, loss, or damage,” a hearing “at the earliest possible time,” and “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Additionally, any court granting injunctive relief would have to provide “reasons why it issued” and “reasonable detail” of “the act or acts restrained or required.” All of this ensures notice and a fair legal proceeding, which is the very definition of due process.
Myth: Anti-piracy legislation would unduly burden small Internet sites targeted by deep-pocketed plaintiff corporations.
Reality: The proposed bill states explicitly that court relief would require only “technically feasible and reasonable measures” by sites in question. Further, there is specifically no duty to continually monitor, and defendants would possess the affirmative defense that they don’t possess the “technical means to comply without incurring unreasonable economic burden.” In addition to the usual perjury protections, moreover, the legislation punishes any plaintiff that knowingly brings a false claim by holding them liable for not only damages caused, but also attorneys’ fees and costs. The bill also empowers courts to modify, suspend or vacate orders whenever “the interests of justice otherwise require.”
Myth: Legislation targeting online piracy somehow constitutes “censorship” and violates the U.S. Constitution.
Reality: First of all, online piracy does not constitute “free speech.” Second, otherwise illegal activity does not magically achieve sacred status or legal immunity simply because it occurs on the Internet rather than on a street corner. Third, this legislation would remain subject to the same judicial review applicable to any other statute.
To be clear, none of this aims to assert that legitimate, honest and informed critiques of the proposed legislation do not exist. Nor is it to assert that any Congressional proposal should be immune from scrutiny in order to ensure individual freedom to the greatest extent advisable.
That said, the first preconditions for a prosperous and just society are rule of law and protection of property rights. Anti-piracy legislation now before Congress finally addresses the threat of foreign piracy, and it’s unfortunate that so many opponents have resorted to inaccurate and flatly dishonest claims in an attempt to derail it.
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