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Internet Raises Alarm over HR 3261, Allows Sites to Be Shut Down

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A bill before Congress could allow sites to be shut down without due process if streaming content or other "counterfeit goods" are deemed to infringe on copyright or intellectual property rights.

"Under this bill, a foreign or domestic Internet site that has broken no U.S. law can nevertheless have its economic lifeblood cut off upon a single notice from a copyright or trademark owner," the Consumer Electronics Association (CEA) protested in a letter to Congressional members opposing House Resolution 3261.

Hearings will begin next week on HR 3261, which is known by a variety of names. The act is officially called the "Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act"  (the E-PARASITE Act) but it is also know as SOPA-Stopping Online Piracy Act.

HR 3261 was introduced by Rep. Lamar Smith, Chairman of the House Judiciary Committee.

"[HR 3261] will stop the flow of revenue to rogue websites and ensures that the profits from American innovations go to American innovators," said Smith. "It expands international protections for intellectual property, and protects American consumers from dangerous counterfeit products."

When it comes to streaming media content, which are not counterfeit goods per se, but could be considered copyright infringements, the SOPA act has the potential to make uploading copyrighted material to any site a felony. This site will explore the topic in a separate article as more details become available, but the most pressing concern is that HR 3271 could provide an end-run around the Digital Millennium Copyright Act (DCMA) fair-use safeguards.

We've written on DMCA take-down notices, and their fairly wide use within the streaming media industry, but DMCA at least provided fair use or "safe harbor" protection that seems to be lacking from the SOPA bill.

"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," writes TechDirt's Mike Masnick. "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."

The first clause of the SOPA bill states that it should not be "construed to impose a prior restraint on free speech," and yet the more stringent requirements of DMCA appear to be bypassed when a site's domain name can be seized for a single failure to comply with a request under the SOPA bill.

Opposition to SOPA has been swift, with the Electronic Frontier Foundation (EFF) calling it a worse bill than the PROTECT-IP act that recently passed the Senate.  According to Corynne McSherry, EFF's intellectual property director, E-PARASITE / SOPA is the House's version of PROTECT-IP but with much broader powers.

"Instead of complying with the DMCA, a copyright owner may now be able to use these new provisions to effectively shut down a site by cutting off access to its domain name, its search engine hits, its ads, and its other financing even if the safe harbors would apply," wrote McSherry. "It requires search engines, payment providers (such as credit card companies and PayPal), and advertising services join in the fun in shutting down entire websites."

In the Senate's PROTECT-IP act, "rogue websites" were defined as those operated outside of the United States, including foreign domain name extensions (eg, .fr, .co.uk), in much the way that "rogue nations" are defined in terrorist legislation.

Yet, McSherry points out, the SOPA legislation can affect sites operating within the United States, allowing the federal government to seize domain names, as it has already done 82 times in the past year.

"This sends a troubling message to the world," McSherry writes. "It's okay to interfere with the Internet, even effectively blacklisting entire domains, as long as you do it in the name of IP enforcement. Of course, blacklisting entire domains can mean turning off thousands of underlying websites that may have done nothing wrong."

CEA says it supports the general concept of a bill to protect U.S. trademarks and copyrights, but that the bill needs an overhaul.

"While we support the concept of protection from foreign 'rogue' websites," CEA stated, "it puts lawful U.S. Internet and technology companies at risk."

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