Points of Protecting IP, Film, and TV Law

By Michael O\'Leary Created: August 15, 2011 Last Updated: December 8, 2011
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In its story on the PROTECT IP Act (“Protect IP Could Have Far-reaching Impact on Digital Freedom,” August 10, 2011), regarding Senate legislation aimed at stopping foreign-based websites that traffic in stolen films and television, The Epoch Times not only got several important facts wrong but missed the point entirely. 

Contrary to the article’s suggestion, the PROTECT IP Act is very, very narrowly-focused to cover only websites whose sole purpose is to provide or point to stolen content. Indeed, the bill’s definition of a rogue site is one that: 

“has no significant use other than engaging in, enabling, or facilitating the reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement … or is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating” infringement (see Section 2(7), emphasis ours). 

It’s clear this bill is targeted at the Pirate Bays of the world, not the YouTubes.

The Times also erred in its characterization of the PROTECT IP Act’s (very strong) provisions for due process. The bill does not allow site blocking to be “enforced without notifying the infringing site”—it mandates that the federal prosecutor bringing an action against a rogue site: 

“shall send a notice of the alleged violation and intent to proceed under this Act to the registrant of the domain name of the Internet site—

(A) at the postal and e-mail address appearing in the applicable publicly accessible database of registrations, if any and to the extent such addresses are reasonably available; 

(B) via the postal and e-mail address of the registrar, registry, or other domain name registration authority that registered or assigned the domain name, to the extent such addresses are reasonably available; and 

(C) in any other such form as the court finds necessary, including as may be required by Rule 4(f) of the Federal Rules of Civil Procedure.” (Section 3(c)(1))

In other words, the government is required to notify the infringing site in virtually every way possible. As constitutional expert Floyd Abrams wrote ”[t]he procedural protections under the Protect IP Act are so strong, uniform and constitutionally rooted that it is no exaggeration to observe that any complaints in this area are not really with the bill, but with the Federal Rules of Civil Procedure Itself, which govern all litigants in U.S. federal courts.”

But there’s also a larger point here. Nobody—hopefully—would think it’s right to walk into a video store and walk out with a DVD without paying for it. Taking a handheld video recorder into a movie theatre, recording a film on the big screen, digitizing it, putting it online, and streaming it or downloading that unauthorized copy to Internet users—often at an enormous profit from online subscription or advertising fees—is no less wrong. Yet that’s what rogue sites do every minute of every day. 

A great movie takes time, money, and effort from a lot of people to make. In the U.S., more than two million people are employed in jobs supported by the film and television industry. Most of those people aren’t the names on the marquees -- they’re the camera operators, set builders, makeup artists, costume makers, studio publicists, and truck drivers who depend not just on the box office but on revenues from DVD sales, licensing, and other so-called “after markets” to earn their living and support their families. And millions more people work in the hotels, restaurants, drycleaners, and furniture stores all over the country who see a boost to their bottom lines when local productions come to town. 

The simple fact is that any business whose products are stolen is less able to invest in new products, new innovations, and new jobs. If film theft leads to fewer productions, that has a real effect on the economy and on employment for many, many people who work in the creative industries. And it also means fewer movies and TV shows for all of us to enjoy. 

In the end, the purpose of the PROTECT IP Act and other efforts around the world to fight film and TV theft is to preserve our ability to make those films and TV shows in the first place. Losing that is too high a price to pay.

Michael O’Leary

Executive Vice President, Government Affairs

The Motion Picture Association of America, Inc. (MPPA)


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