The latest installment in reactions to the US Senate-introduced “Protect IP Act” is the “Professors’ Letter in Opposition to ‘Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011.”

Under the Protect IP Act, the Attorney General, after a Department of Justice civil action, can serve a temporary restraining order, a preliminary injunction, or an injunction requiring a domain name system (DNS) server, financial intermediary, Internet advertiser, or search engine to take measures to remove access to or stop engaging in business with an infringing site registered outside of the U.S.

Support for the bill has come from many areas of the creative community, from SMEs to IP rights advocate groups, from artists to the U.S. Chamber of Commerce.  Despite the enthusiastic support for this Senator Leahy-backed bill, there have also been many sources of staunch opposition, resulting in Senator Wyden placing a hold on the bill on May 26.

In his opening statement at the Executive Business Meeting on May 26, 2011, Senator Patrick Leahy stated “[t]he Protect-IP Act targets the most egregious actors, and is an important first step to putting a stop to online piracy and the sale of counterfeit goods.”  It will “provide law enforcement with important tools to stop websites dedicated to online piracy and the sale of counterfeit goods, which range from new movie and music releases, to pharmaceuticals and consumer products.”  Speaking of the benefits of this act, Senator Leahy stated “[t]his legislation will provide law enforcement and rights holders with an increased ability to protect American intellectual property.  This will benefit American consumers, American businesses, and American jobs.”

But criticisms of the bill have come from sources far and wide.  The Computer and Communications Industry Association sponsored the “Fair Use in the U.S. Economy” report, which suggests that increased restrictions like those proposed in the Protect IP Act will “deter” innovation in an economic climate where creative innovation needs a boost, not a setback.

Another report, written by a group of renowned internet tech and security experts, “Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the Protect IP Bill,” elaborates on the technical problems that could result from the passing of the Protect IP Act.  Included in the report’s predictions are: an overall ineffectiveness of reducing online global infringement, an undermining of the universality of domain names, a collateral effect of reducing access to non-infringing websites, and overall weakening of the goal of improving Internet security.

The most recent opposition has been the “Professors’ Letter.”  Backed by “108 professors from 31 states, the District of Columbia, and Puerto Rico,” this report to the members of Congress addresses three major issues with the Protect IP Act.  The report states that the Act “has grave constitutional infirmities, potentially dangerous consequences for the stability and security of the Internet’s addressing system, and will undermine United States foreign policy and strong support of free expression on the Internet around the world.”

The first point the report makes is that the Protect IP Act does not meet Constitutional standards because a final determination of unlawful activity must be made “before material is completely removed from circulation.”  A footnote under this point addresses the fact that in addition to the alleged infringing material, a large amount of protected speech may be affected, as mentioned in the “Security and Other Technical Concerns” report addressed above, thus further emphasizing the potential over-broadness of this legislation.

A second point states that this Act will “have potentially catastrophic consequences for the stability and security of the DNS.”  The report argues that by blocking certain websites, the domain name universality that allows for all queries to come up with the same answer, no matter what DNS is being used, will be undermined.  Additionally, by blocking websites this Act in fact will “subvert” current efforts supported by the US in strengthening the security of DNS protocols.

Finally, the report argues that this legislation is in opposition to the tenets of the freedom of speech and expression, and also undermines the United States’ role as a leader in supporting these ideals.  Google’s Eric Schmidt has expressed the same sentiments, comparing the proposed act to the restrictions of free speech that Google was fighting in China.

The primary tension is not whether IP in cyberspace should be protected at all, but rather whether the positive effects outweigh the negative ones.  As with the recently released “Memorandum of Understanding,” the Protect IP Act is an attempt to curb piracy and illegal activities on the Internet.  But with the Internet being one of the primary means of communicating and information gathering, in addition to its extreme importance in both the domestic and global economies, the proposed legislation’s effects on free speech and expression and the potential collateral effects on the structure of the Internet must be considered.

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