Fixing Protect IP

12/25/2011 09:43 pm ET | Updated Feb 24, 2012

A recent study found that online piracy websites record around 53 billion hits per year. That's almost eight hits for every person in the world. Without question, the world has caught on to the flourishing world of free songs and movies.

So it is no question that two recent bills floating around Congress -- Protect IP in the Senate and the similar Stop Online Piracy Act (SOPA) in the House of Representatives -- have experienced immense backlash. While the two bills are significantly flawed, Congress should shake off the misguided criticism and move forward to combat the only big issue that is experiencing bipartisan support.

The Protect IP Act, approved by the Senate Judiciary Committee over the summer, needs a lot of work. The bill defines a violating website as one that has "no significant use other than engaging in, enabling, or facilitating" the distribution and sale of copyrighted material "in complete or substantially complete form."

If the offender cannot be reached, the government or a private party can obtain an injunction from a judge forcing advertising and payment companies, such as PayPal, to discontinue their business with the infringing website. The government can also use the injunction to require Internet providers to redirect traffic from the site, and can also force search engines to stop linking to the site.

Primary opposition to the measure states, for example, that someone singing a song on YouTube could cause the website to be shut down. The broadness of the definition of an infringing Web site could allow for that kind of severe enforcement. If a website simply "facilitates" the distribution or promotion of copyrighted material, they are considered offenders. Many point to a recent case, when Google settled for $500 million with federal agencies for failing to reject advertisements from illegal drug companies in Canada. Under Protect IP, some argue, Google would have likely been shut down.

That may be true. But as Steve Tepp, chief intellectual property counsel for the United States Chamber of Commerce, says, that kind of oppressive response is not the purpose of Protect IP. Instead, "The targets are the rogue sites, the real bad actors," he said.

Protect IP also presents a dangerous solution. Experts have pointed out that the procedure presented by the bill for redirecting traffic would be very similar to what hackers do when they hijack a domain. If done on a large enough scale, experts claim, it could compromise greater efforts to make the entire domain system safer.

Many also claim that the system created by Protect IP is too demanding, and sites like Google or YouTube could not possible come up with the resources to combat all instances of piracy. However, Google and other websites have already been standing up to piracy for over a decade. Under the Digital Millennium Copyright Act of 1998, copyright holders can require sites to take down links to pirated material. According to Katherine Oyama of Google policy counsel, Google has already done that "more than five million times."

Protect IP would not require much more enforcement by websites than is already in place; its aim is to create a stricter process to begin cracking down on offenders on a larger scale. Contrary to many concerns, the federal government could not simply step in and shut down any website just because a link was missed. The government or a private party would first need to notify the website, and action could only be taken if there is no response and an injunction is obtained.

Without question, the current bill needs work. It is too broad and neglects many Internet safety issues. Senator Ron Wyden of Oregon has been blocking the bill due to these concerns, and rightfully so. But that is a call for more work, not to give up. Protecting intellectual property and combating a new, unorthodox, and rapidly growing form of theft is too important, and so is protecting the Internet from repressive enforcement.