An open response to Sen. Blumenthal on Protect IP and SOPA

Almost anything can be claimed as a copyright violation if you don't have to defend the claim.

A few months ago, I signed an electronic petition to send comments to my senator, Richard Blumenthal of Connecticut, about the PROTECT IP Act and its partner, the Stop Online Piracy Act (SOPA). There are many such online petitions to choose from, including one that will get your name read into the congressional record as part of a filibuster by Sen. Ron Wyden of Oregon.

But I was particularly horrified by my senator’s response. Let me give some background. Prior to being elected senator, Blumenthal had a long and honorable history as Connecticut’s attorney general. He was one of the leaders in the states’ restraint-of-trade lawsuit against Microsoft in the ’90s. So, while I admit I wasn’t as informed as I might have been, I was frankly shocked to receive a response from his office saying that he was one of the sponsors of PROTECT IP.

The idea of a “private right of action that would allow rights holders to enforce directly violations of their intellectual property rights” is abhorrent to U.S. law. What is basic to U.S. law is not IP rights but the oversight of the courts. If someone were to attempt to murder me, a much more serious (if less economic) crime than copyright violation, I would not have the right to pursue remedies outside of the court system. That’s revenge, and while we may glorify revenge in our pop culture, it’s important that it’s illegal. But that’s precisely what SOPA and PROTECT IP are proposing: remedies to copyright violation that never come under the scrutiny of the legal system. I don’t understand at all why Blumenthal says that he tried to balance “protecting freedoms” against “protecting legitimate commercial, economic and safety considerations.” “Counterfeiters and thieves” may not be allowed to disobey copyright laws, but they certainly do get their day in court.

Neither is intellectual property an “engine of job creation.” The danger we face now is that the abuse of intellectual property will put a halt to job creation in the one area of the economy that is actually generating jobs, as Tim O’Reilly and Fred Wilson have pointed out on several occasions. We’ve seen a horrifying increase in both patent and copyright trolling; the Righthaven case is just one example. And even as important an IP creator as Warner Bros. recently was caught red-handed abusing the DMCA’s IP protection by issuing takedown notices for content that didn’t infringe — in fact, content Warner Bros. hadn’t even looked at. Warner’s lame defense was that the DMCA takedown notices were issued by buggy software. I think we can expect much more of the same under PROTECT IP and SOPA, and with limited legal recourse.

Furthermore, as James Duncan Davidson points out, PROTECT IP and SOPA lay the ground for much broader forms of censorship. And, while I don’t like slippery slope arguments as a rule, this is one that scares me. If you remember the first days of Internet regulation, relatively few sites were taken down because they offered pornography; anti-porn legislation was abused to take down sites discussing contraception. Without any sort of court review, I foresee many fraudulent attempts to silence political opposition. If you’re clever enough, almost anything can be claimed to be a copyright violation, especially if you don’t have to go before a judge to defend the claim.

While I has happy to support Blumenthal in his 2010 election, he is leading me to regret it. The senator for whom I voted had an honorable history of defending people against corporate excesses and monopolies; he was not a senator to countenance letting corporations short-circuit the legal system to defend what they imagine to be their rights. Many of the initial backers of PROTECT IP and SOPA have realized how dangerous this legislation is and backed off, both for our economy and for the legal system in general. I hope Blumenthal will do the same. If he does not, he will not get my support in 2016.


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