Courts

OPA Backers Get Some Help From Dutch Court

1/13/2012 9:36 AM Eastern

Studios, networks and other content providers have gotten more fodder for their argument that the government needs to crack down on online video piracy, including by blocking access to domain names of infringing sites, though opponents of so-called DNS blocking don't see it that way.

A court in the Netherlands last week ruled that Dutch ISPs Ziggo and XS4All must block access to web site The Pirate Bay, according to Dutch anti-piracy group BREIN, which represents Dutch video and music producers (their version of MPAA or RIAA), which sought that court order.

But there are two bills in Congress, the PROTECT IP Act in the Senate and the Stop Online Piracy Act (SOPA) in the House that, up until last week, would both have allowed ISPs to use Web site access blocking technology to combat online piracy.

At about the same time backers of those bills were praising that Dutch court decision, Senator Patrick Leahy (D-Vt), chairman of the Senate Judiciary Committee, said he would introduce a substitute to his PROTECT IP Act that would not include domain name blocking/filtering.

"As I prepare a managers' amendment to be considered during the floor debate," he said, "I will propose that the positive and negative effects of this provision be studied before implemented, so that we can focus on the other important provisions in this bill, which are essential to protecting American intellectual property online, and the American jobs that are tied to intellectual property. "

Leahy has scheduled a procedural vote on the bill for Jan. 24. The House version of the IP protection bill, the Stop Online Piracy Act (SOPA) still gives internet service providers the ability to block web sites if a court order can be secured.

Opponents of SOPA, which include search engines-Google most prominently -- and consumer electronics companies, have argued that the increased authority it gives content providers to combat alleged piracy, including blocking access to domain names of alleged infringing sites with a court's approval, threatens the openness and even viability of the Internet, a charge content owners suggest is alarmist and unfounded.

"The ruling by the Dutch court means that the Netherlands now joins other countries including Austria, Belgium, Denmark, Finland and South Korea that have asked ISPs to block access to infringing websites," says Daniel Castro, senior analyst with the Information Technology and Innovation Foundation (ITIF). "This should help reassure lawmakers that DNS blockings a tried and tested means for blocking access to infringing websites that neither 'breaks the Internet' nor harms free speech."

That is a different take from ITIF honorary co-chair Darrell Issa (R-Calif.), who has strongly opposed SOPA and proposed an alternative bill, the OPEN Act, which instead treats the issue as one of illegal imports. It would update U.S. trade laws to reflect that illegally downloading protected content -- like a TV show or film -- from a foreign-owned Web site is akin to illegally importing foreign hard goods. It would expand the powers of the International Trade Commission to enforce copyright and trademark infringement of online digital goods.

According to SOPA supporters, the Netherlands court decision buttresses a decision in an Antwerp court of appeals last September in which a pair of ISPs were also ordered to block Pirate Bay.

Nielsen data provided by one of the studios shows that Pirate Bay visits from Belgium have decreased by 80% since November, and following a the decision by the Italian Supreme Court that ISPs could block Pirate Bay, and the application of a filter to block IP addresses and domain names, accesses to the site from Italy had dropped by 74% through November as well.

But SOPA opponents are concerned that sites will be blocked on mere suspicion, that if those suspicions are wrong the damage will have already been done, that it is unclear what qualifies a site as infringing, and that DNS blocking could be used as an end-run around network neutrality rules.

"Many countries around the world require Internet censorship for a variety of reasons -- alleged copyright infringement, hate speech, privacy, suppression of political dissent," said Michael Petricone of SOPA critic, the Consumer Electronics Association. "The United States has taken a very different approach. The content industries' suggestion that we emulate regimes that censor the Internet is short-sighted and economically destructive. Instead the United States should remain the world's foremost champion of a free and open Internet, and fight piracy through smart, targeted measures like the OPEN Act."

House Judiciary Committee chairman Lamar Smith (R-Texas), who introduced SOPA, tried to mark up the bill in December, but postponed action until after a planned hearing on cybersecurity issues raised during the marathon markup. A hearing on OPEN Act has been scheduled for Jan. 18 in the House Committee on Oversight and Government Reform, which Issa chairs, with those security issues expected to be addressed in that session.

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