Protecting the internet from online pirates

As a result, these modern-day pirates have followed in the footsteps of their 18th century namesakes and fled offshore.  Using websites based in Russia, China, Ukraine and dozens of other countries, typically those with substandard intellectual property laws and enforcement, these criminals continue to prey upon U.S. consumers. Current law gives U.S. authorities no power to stop them, and the geometric growth of these foreign websites shows that other governments are either unable or unwilling to act.

That means thieves can continue to steal from the American workers and businesses whose genius creates these works—to the tune of more than $58 billion per year, which translates into more than 370,000 jobs. In the music industry alone, the AFL-CIO estimates a loss of 200,000 jobs. As Sen. Leahy explained in introducing the legislation, “Each year, online piracy and the sale of counterfeit goods cost American businesses billions of dollars, and result in hundreds of thousands of lost jobs. . . . Protecting intellectual property is not uniquely a Democratic or Republican priority—it is a bipartisan priority.”

The proposed bill, S. 3804, the Combating Online Infringement and Counterfeits Act, would give the Justice Department the power to act against websites that are, in the words of the proposed legal standard, “dedicated to infringing activities.”  If a federal court finds that the government has proven facts satisfying that standard, the court can order the website to stop engaging in piracy.

But the United States cannot force a website in Russia or China to comply with that order.  The bill therefore provides additional remedies that can be enforced within the United States, requiring internet service providers, credit card companies and ad servers to stop dealing with the pirate websites. By cutting the pirates off from the U.S. market, billions of dollars of harm can be prevented—and hundreds of thousands of U.S. jobs saved.

Where’s the infringement of free speech?

These pirate sites sometimes have a small amount of legal content mixed in with their pirated goods.  Some say that blocking access to a website is permissible only if 100 percent of the site’s content is illegal.

If correct, that argument would mean a store selling child pornography could avoid a shut-down order by giving away a free copy of the Constitution with every purchase. Not surprisingly, courts have soundly rejected that approach. Nearly 25 years ago, the Supreme Court held that a bookstore that was a frequent site of prostitution could not invoke the First Amendment to block a closure order. The Court refused to  allow the bookstore to “use the First Amendment as a cloak for obviously unlawful” activity.  It said that the important government interest in preventing illegal conduct permitted “incidental limitations on First Amendment freedoms,” and noted that the bookstore owner was free to open a new store dedicated only to bookselling. 

The same rationale plainly applies to websites located within the United States: no one would argue that a child pornographer should retain ownership of a website just because his home page contains a constitutional argument supposedly justifying his illegal activities.  There is no reason that sites located outside our borders should receive greater constitutional protection.

Certainly the fact that the foreign website is blocked, rather than shut down, does not make a constitutional difference.  Courts have said, logically, that a listener’s right to receive information derives from the speaker’s right to speak.  Because the First Amendment does not protect the “speaker” whose website is dedicated to violating copyright and trademark laws, preventing access to that site does not infringe any legitimate right to receive information. The First Amendment cannot be transformed into a license to steal the economic benefits of Americans’ creativity.

What’s the connection to human rights?

Some groups say that blocking access to pirate websites sets a precedent that other countries will use to justify censoring foreign websites sites on ideological grounds.

But there is a crucial difference.  The piracy that triggers government enforcement under the proposed legislation is universally recognized as illegal:  153 countries have joined the World Trade Organization, agreeing to the copyright and trademark standards embodied in the bill. That simply is not true of political censorship.

Critics also cite Secretary Clinton’s landmark speech on Internet freedom earlier this year, noting her endorsement of “a single Internet where all of humanity has equal access to knowledge and ideas.”  But Secretary Clinton specifically emphasized the importance of preventing pirates from using the internet to “distribute stolen intellectual property.” That is precisely what this legislation will do:  ensure that the Internet thrives as a medium for the free expression of ideas, and not as a tool for stealing the ideas of others.

Strong protection for free speech, human rights, and intellectual property have long been hallmarks of United States law, and all three principles have long coexisted  within our borders.  Preventing foreign pirate websites from preying on U.S. consumers and stealing from U.S. artists is completely consistent with all three of these fundamental principles.

Andrew Pincus served as general counsel of the United States Department of Commerce from 1997-2000.