06/01/2011 11:34 am ET | Updated Aug 01, 2011

"All or Nothing at All"

In looking at the response of the critics to the new PROTECT IP bill I couldn't help but recall the title of the old Altman/Lawrence song "All or Nothing at All". These critics want a perfect solution to piracy or no solution at all.

They all do lip service to the idea that piracy is a problem but, and there is ALWAYS a "but", they find some hypothetical situation that might happen as a result of the legislation and say the results would be too dire for them to support the Bill in its current form.

The fact is undeniable that piracy has become a profitable business model for rogue websites and their enablers. American creators of all varieties are having their work plundered costing billions to our economy and hundreds of thousands of jobs. Many of these rogues sites are foreign-owned or their domain names are registered outside the jurisdiction of U.S. law even though they target U.S. consumers. Policy makers have struggled for over a decade to find the proper fix for the problems presented by these rogue websites and now with the PROTECT IP Bill they are taking some first steps.

The PROTECT IP Bill focuses squarely on removing the profit from these illegal enterprises. It would authorize civil action in U.S. Federal Court to crack down on rogue websites dedicated to the sale of infringing or counterfeit goods. It targets the 'worst of the worst' websites that are dedicated to selling infringing goods.

Both the Justice Department and individual rights holders would be able to file a civil suit against the owner of a domain name that accesses a foreign Rogue website or the foreign-registered domain name itself to try to get the Court to rule that the site is dedicated to infringing activities. If the suit is successful and the Court issues an order against the owner or registrant of the website, the Attorney General would then be authorized to serve that order on specified ISP's, payment processors, online advertisers, and search engines, telling them that they must either stop doing business with the rogue sites or block access to them.

In simple terms the Attorney General tells these third parties to stop doing business with known thieves.

But these reasonable procedures with all their due process are still not perfect enough for the critics.

For instance, they like to refer to the Bill as the "Internet Censorship Act" because some website containing massive amounts of counterfeit and infringing material MIGHT also contain a political statement that would be covered by the First Amendment. But the law is clear, you can't simply wrap your illegal files in a copy of the Constitution and be immune from prosecution. Remember, a U.S. Federal court has to determine that the site is 'dedicated' to counterfeiting and infringement before an order will be issued.

Some detractors like the the Electronic Frontier Foundation claim that the Bill threatens current 'safe harbor' provisions in the DMCA (Digital Millennium Copyright Act). They make the claim on the EFF website that, "rights holders will argue that safe harbor qualification is simply immaterial if a site is deemed to be dedicated to infringement." It appears that the EFF wants the DMCA to be a shelter against prosecution even if the site is dedicated to infringement. That was never the intent of the DMCA, which was to protect legitimate sites from prosecution for unknowing storage or transfer of copyrighted material.

Public Knowledge finds fault with the Bill because, "even if the site isn't itself infringing copyright, if its actions "enable or facilitate" someone else's infringement, the government can tell ISPs to blacklist your site, and copyright holders can sue to cut your funding." But encouraging and enabling others to violate copyright law is already against the law. This Bill only makes it possible to do something about the rogue sites that are thumbing their noses at that law.

Lastly the critics invoke the old 'slippery-slope' argument that the Bill "will be taken as a model for governments everywhere that seek to cut off from their citizens content and speech they'd rather not have available. This bill accelerates the Internet down that path." It is highly doubtful that dictators around the World are eagerly awaiting the moment when this BIll passes so they can censor the Internet. They are ALREADY censoring the internet. There will always be tyrants who will seek to silence their critics. However, the film makers, writers, and musicians whose voices have always been in the vanguard of freedom are now being silenced by piracy when they are forced out of their chosen professions. That is a form of repression of free speech that is clearly happening right now all over the globe.

As a creator there is nothing more disheartening than seeing your work being stolen while advertizements are sold on top of the access to illegal copies of your work. (Independent film maker Ellen Seidler has a great expose' documentary called, Pirates, Google, and DMCA, that shows how this system pays everyone but the creators.) The time has come to protect the voices that are being silenced by these rogues websites. The Protect IP Bill isn't a perfect fix-all for piracy, but it is a start.

Sometimes instead of singing "All or Nothing at All" we need to sing 'something is better than nothing'!