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Congress should act to enable the government to “follow the money” in attempts to shut down “rogue” websites that host infringing material, according to members of a panel testifying March 14 before the Subcommittee on Intellectual Property, Competition, and the Internet of the House of Representatives Judiciary Committee.
The hearing--titled “Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites, Part I”--was the first of at least two subcommittee hearings that will address the question of websites that host massive amounts of unauthorized material, particularly streaming motion pictures, according to the subcommittee chairman, Rep. Robert W. Goodlatte (R-Va.).
Witnesses and subcommittee members also expressed concern that any action taken might result in infringing on the due process or free speech rights of individual website operators.
Rep. John Conyers Jr. (D-Mich.), ranking minority member of the full Judiciary Committee, offered a draft definition of “rogue site”:
An Internet site is 'a rogue site' if--
(A) such site is primarily structured in order to, and has no demonstrable, or significant commercial purpose or use other than to offer goods or services in violation of title 17, including by offering or providing access to, in a manner not authorized by the intellectual property owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, streaming or other transmission, or otherwise; and
(B) the activities described in subparagraph (A) are central to the activity of the Internet site.
Acting against such sites is a “top priority” of the subcommittee, according to Goodlatte, and he urged stakeholders to offer not only suggestions for governmental action, but also to pursue “innovative” solutions.
Rep. Howard L. Berman (D-Calif.) agreed, stating that it was “long past time for saying 'no' to every new idea.”
Frederick D. Huntsberry, chief operating officer of Paramount Pictures Corp., Los Angeles, testified before the subcommittee that rogue websites represent an “online shadow economy” and comprise websites that are often indistinguishable from legitimate websites that offer copyrighted content. He noted the speed at which such sites are able to acquire and distribute motion pictures over the internet, all this without contributing to the income of the entities and individuals that contribute to the creation of such works.
“We have reached the limits of self help,” Huntsberry said, mentioning the tens of millions of takedown notices that his firm had sent out the previous year.
Maria A. Pallante, the acting register of copyrights, was among the witnesses offering a range of tactics to pursue sites hosting infringing content. Among these were:
• Taking action against payment services providers, such as credit card companies, that make it possible for rogue websites to derive income from internet users;
• Taking action against those who advertise on rogue sites;
• Requiring the domain name system to block the domain names of rogue websites; and
• Requiring internet search engines to suppress rogue site entries in search results.
Another witness, David Sohn of the Center for Democracy and Technology, Washington, D.C., agreed that to a large extent, rogue sites operate because they are confident that there will be no enforcement of IP protection laws against them. He recommended “a targeted focus on true bad actors” to take down offending sites and said that the worst of the problems would require the “hard work” of cross-border cooperation, because of the fact that many sites are hosted overseas or move around in order to escape enforcement.
However, Sohn cautioned that a “careful cost-benefit analysis” be conducted when considering any new legislation. In particular, Sohn questioned the value of using the domain name system to block offending sites. This tactic was part of a bill--the Combating Online Infringement and Counterfeits Act (S. 3804)--which was introduced in the Senate in the previous session but died with the 111th Congress (80 PTCJ 679, 9/24/10).
Sohn said that such a system is likely to be ineffective, because rogue sites could easily get around it by switching to DNS servers not under U.S. control and could dispense with domain names altogether. He also warned of likely “collateral damage” affecting large numbers of individuals as well as web pages that do not contain infringing content, but which share a domain name with an offending rogue site.
However, Daniel D. Castro of the Information Technology and Innovation Foundation, Washington, D.C., disagreed, stating that using the DNS to block rogue sites is a “straightforward” solution.
Having listened to the testimony, Conyers lashed out at the witnesses and expressed his profound disappointment at what he perceived is a dearth of suggestions for action that Congress could take to address the problem being described.
“How many hearings do you think there are going to be on this subject this year?,” Conyers asked the witnesses. Conceding the remainder of his time to Goodlatte, Conyers quipped that given the quality of testimony before the subcommittee, he was not surprised that the industry was losing money.
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