What’s Wrong With the Senate’s Anti-Piracy Bill

Critics insist Sen. Leahy’s proposed bill won’t do much to shut down piracy sites — and could endanger legal ones

The 40-nation Anti-Counterfeiting Trade Agreement, made public on Wednesday morning, isn’t the only attack on piracy that’s bringing smiles to faces in Hollywood.

The U.S. Senate’s proposed Combating Online Infringement and Counterfeits Act — introduced into  committee by Sen. Patrick Leahy late last month — also is making the movie and music industry folks happy.

But despite the assurance that its intent is to target “the worst of the worst counterfeiters and copyright pirates online,” a growing number of critics say there is no evidence it will actually work.

The problem, critics contend, is that it isn’t likely to do much to stop sites that provide access to unauthorized downloads.

In fact, it could endanger legal sites.

Still a long way from passage, the legislation gives the Department of Justice and the courts the power to pull the plug on sites that infringe on American intellectual property such as software, movies, television shows and music.

It also would allow the DOJ to compel internet service providers like AT&T or Verizon to block U.S. access to infringing sites it identifies — the very behavior the U.S. has long criticized in nations like China and Iran.

Read the whole bill here.

If it were law today, sites like Pirate Bay would disappear from American computer screens, which many — especially in the industry — think would be appropriate.

“What this bill says to the world is that in the United States we favor legitimacy, and we will not promote or protect these type of sites that are profiting from stealing our stuff,” Michael O’Leary, the MPAA’s executive vice president of government relations, told TheWrap.

Agrees technology consultant Chantal Payette: “The sites that carry this material are no better than drug dealers, they are breaking the law.”

But simply shutting down offending sites may be easier said than done.

“Unless you’re going to close down the whole internet or come up with a new business model, you are never going to be able to stop people sharing digital content, legally or illegally,” a music industry insider who has watched past attempts to stop piracy flounder told TheWrap.

Indeed, earlier this summer, after the government launched Operation In Our Sites, its latest attempt at targeting online piracy, the MPAA and others found out just how limited their version of legitimacy could be.

Law enforcement officials in New York seized the domain names of TVShack.net, Movies-links.tv, and others illegally showing first-run films and shut them down. It worked — like efforts to stifle the BitTorrent site Pirate Bay. But just for a while.

The U.S. Attorney may have pledged at the time that “if your business model is movie piracy, your story will not have a happy ending”– but within days the newly created and now off-shore TVShack.cc sprung right back up.

“What you’re talking about,” says the pessimistic label executive, “is like finding a glass of water in the ocean, and it’s too fluid to ever get your hands on.”

And once you start shutting sites down, it’s not always certain where to draw the line, critics contend. By aiming wide in its war on online piracy, they fear, Leahy’s legislation would put a lot of perfectly legal sites out of business, too.

“The bill,” said 87 prominent internet engineers in an objecting letter to Leahy and the Judiciary Committee, “will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties’ ability to communicate.”

“People like to pretend that copyright infringement is a clear thing, but that is ignoring fair use,” says the Electronic Frontier Foundation’s Rebecca Jeschke. “Presently, you can use part of a movie or a song as part of criticism or commentary and that could be, when misapplied under this bill, shut down.”

Additionally, as internet pioneers like Paul Vixie, author of DNS server software BIND, pointed out in the letter to Leahy in late September, under the same piracy mechanism the bill “will be particularly egregious in that regard because it causes entire domains to vanish from the web, not just infringing pages or files.”

“With this bill, the United States is saying that breaking the internet is a suitable policy approach to content you don’t like,” says Matt Schruers, senior counsel for the Computer & Communications Industry Association, whose members include Microsoft, Facebook and Google. “What we do for IP, Chinese authorities will want to do for democracy and Falun Gong, and Turkish authorities will want to do for Kurdish groups.”

Finally, charges of censorship aside, there are also legal concerns. “The privacy issues and proprietary issues for service providers and others will tie this up in the courts,” the music executive told TheWrap, “and while that plays itself out, the rogue sites will find a way to continue.”

While admitting Leahy’s proposed bill is far from perfect, the MPAA’s O’Leary says it’s a vital first step towards halting the rapidly growing problem. But he also cautions that both critics and supporters need to bring the volume down a bit and let the legislative process play itself out before casting any final judgments.

“I spend a lot less time worrying about what things look like at the beginning and a lot more time worrying about they’ll look like in the end,” he told TheWrap.