New E-PARASITE Act would gut DMCA protections

Rich Fiscus
27 Oct 2011 14:05

A version of PROTECT IP, the bill designed to allow the government or copyright holders to effectively shut down websites accused of IP infringement via blacklisting, has been introduced in the US House of Representatives.
Note: This bill has since been renamed SOPA, or The Stop Online Piracy Act
If you thought PROTECT IP was bad, you're really going to hate the House version, called The E-PARASITE Act. It expands on the language in PROTECT IP, which would already give private IP holders get court orders blacklisting websites and forcing ad and payment providers to suspend their accounts.
E-PARASITE includes language allowing those private entities to demand ad and payment providers cut off alleged infringers without involving the courts at all. What's worse, this right would apply to any website which:

is taking, or has taken deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code.

If that sounds familiar, you may be familiar with the lawsuit against YouTube where Viacom made exactly that allegation. In that case, which is being appealed right now, the court ruled in YouTube's favor because the DMCA doesn't require service providers to actively police content from their users.
Making matters worse, while PROTECT IP focuses solely on services provided from outside the US, with the reasoning they are run by companies outside the jurisdiction of normal US legal processes, the right of private action in E-PARASITE has no such restriction.
In other words, E-PARASITE would essentially gut the safe harbor protections in the DMCA. Service providers, rather than IP holders, would be held responsible for finding and eliminating copyright infringement.
As the Viacom case and numerous other examples have shown, even the legal departments at entertainment companies are often unable to distinguish between officially sanctioned and unauthorized content.
ISPs would also be given additional responsibilities under E-PARASITE. Where PROTECT IP simply requires them to redirect DNS queries for blacklisted domain names, E-PARASITE rewords their responsibillity to taking, "technically feasible and reasonable measures designed to prevent access by its subscribers."
Another new provision in E-PARASITE would, according to Sherwin Sly of Public Knowledge, allow the Justice Department to take action against anyone who even publishes a list of blocked IP addresses or explains how to circumvent the blocks. According to the bill, action may be taken:

against any entity that knowingly and willfully provides or offers to provide
a product or service designed or marketed for the circumvention or bypassing of measures described in paragraph (2) and taken in response to a court order issued pursuant to this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to provide such product or service.

Read the full text of the bill: