Whoa Shelly Roche…Stealing Does Not Equal Free Speech
Last Thursday Shelly Roche posted this video on her site bytestyle.tv:
Roche reports that the bill, Combating Online Infringement and Counterfeits Act (S. 3084), gives the Department of Justice the power to blacklist websites by blocking their domain name, effectively turning the website off.
“The bill would grant the Department of Justice unprecedented power to block any Internet domain it determines to be, quote, ‘dedicated to infringing activies.’ Naturally these infringing activities are broadly defined and of course decisions by the DOJ are not subject to judicial review.”
However, the problem is that “infringing activities” and the websites that they occur on are not as broadly defined as Roche implies. The language is broad, but we’re talking about the Mississippi here, not the Atlantic.
You can find a copy of the bill here.
The bill defines both the websites it takes aim at and “infringing activities” in Sec. 2324. The websites the bill points the finger at are those that are considered to have “no demonstrable, commercially significant purpose.”
Now obviously, there are millions of websites that exist that do not have a clear value to anyone other than the owner or possibly only a small group of individuals. A large percentage of those websites will also not have a significant commercial purpose. But, you can’t just take that one part out of the context of the rest of the bill. That’s what we call eisegesis – the process of inserting ones own ideas into an interpretation of the text.
You see the “infringing activities” the bill refers to has to do with intellectual property. We find that fairly clearly written without the need for interpretation in Sec. 2324(a)(2)(A)(i).
“Goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays.”
For those that are unaware, Title 17 of the U.S. Code deals with copyright. Additionally, Sec. 2324(a)(2)(A)(ii) goes on to include distributing counterfeit materials that are trademarked.
So let’s try to find some English in all of these words.
Essentially, an Internet site must show that it has no obvious commercial purpose and that it has a focus on offering or providing access to unauthorized copyrighted or counterfeit materials or services. Websites that exhibit both characteristics will be considered to be a site that is “dedicated to infringing activities”. Sites that are defined as such will essentially forfeit their ownership of their domain name to the U.S. government. And the government will turn off the domain name, essentially shutting down the site.
Now are there some broadly defined items in the bill? Sure. Is it so broad that it isn’t clear that this bill is specifically talking about intellectual property theft? Not a snowflake’s chance in hell. Spreading this notion is like… Well it’s like burning water in a microwave.
Roche also has concerns with whether or not the bill takes a hop, skip, and jump over that whole “due process” thing in the Constitution. “No person shall . . . be deprived of life, liberty, or property, without due process of law.” But this bill has been drafted as a modification of U.S. Code Title 18 under the “Crimes” subsection. Title 18 deals with crimes and criminal procedures. So simply because this section of the U.S. Code is being modified does not imply that due process would not occur.
Furthermore, there is some evidence that the focus of this bill is aimed at fighting IP crimes off U.S. shores. This past July, Howard Berman (D-Calif) stated that he was working on a bill with Patrick Leahy (D-Vt), the bill’s author, that would look to improve “international intellectual property enforcement efforts.”
It’s a fair concern to wonder ultimately what the bill’s focus will be. What is not a legitimate concern is that this bill somehow allows the government to shut down random websites because they disagree with the contents of the site and that it is “taking aim at your Internet freedom” or that the “bill will end free speech online.”
Theft of intellectual property is a crime. It is wrong, and so is armed robbery. We wouldn’t argue that preventing armed robbery would end free speech. Would that make sense to anyone?
This looks like legislation that will be looked at more closely in 2011. We will keep our eye on its progress.