The Status Of Online Copyright Infringement Law In 2011

2011 has been a year of very large copyright infringement complaint filings.  First came word that the makers of The Expendables are suing 23,322 John Does who allegedly downloaded the movie online for free using a program called BitTorrent.  Roughly a week later, a new lawsuit against 24,583 John Does who allegedly illegally downloaded the movie Hurt Locker was filed, again based on illegal Torrent file downloads through the program BitTorrent.  It is likely that there will be some overlap between John Does in each lawsuit, but even if that is so, this type of litigation has the potential to affect a large number of people.  And the movie studios are not done filing complaints against downloaders just yet.

PROTECT IP Act

The federal government has known about the illegal downloading of movies for quite some time, but it now also needs to react to the sheer number of people being sued based on their illegal actions. It recently developed the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (the PROTECT IP Act), which gives the government and copyright holders the ability to shut down websites contributing to copyright infringement.  It also will allow United States authorities to tell search engines that they may no longer list certain infringing websites in search results, force internet service providers to end access to the websites, and mandate that United States based advertising networks and payment processors no longer work with the sites.  Private action is also available by the copyright holders themselves, so long as they first seek a court order, but search engines and internet service providers are immune from such private action.

The PROTECT IP Act unanimously passed the Senate Judiciary Committee on May 26, 2011.  Many members of the Senate may be concerned that the bill threatens free speech; the bill will now head to the Senate floor for debate, where it will likely be heavily contested.  Sites like Google and Yahoo spend a lot of money on Capitol Hill lobbying efforts, and you better believe that they will use their influence on this occasion to attempt to sway legislators to vote against the PROTECT IP Act.  Further, Senator Ron Wyden (D-OR) placed a hold on the motion to proceed to the PROTECT IP Act, objecting to any unanimous consent request to proceed to the Act.

Illegal Streaming of TV Shows and/or Movies

Senators Amy Klobuchar (D-MN), John Cornyn (R-TX) and Christopher Coons (D-DE) also recently introduced a new bill that would make it a felony to illegally stream TV shows and/or movies.  This bill, if passed, could effectively end up turning Zediva’s commercial video-on-demand service that streams movies to consumers into a violation of criminal law.  Streamers who are caught and found guilty of this illegal streaming will face a 5-year maximum prison sentence.

What is Next?

New copyright legislation that consequently restricts free speech will not easily pass through the House of Representatives or the Senate.  The bills discussed above, and others yet to be produced, will face heavy opposition from Congressmen and women along with large internet companies with heavy lobbying budgets.  At the same time, courts cannot get clogged with lawsuits that name over 20,000 Defendants and bog internet service providers down with enormous subpoenas that request information about the John Does.  Movie studios need to be protected so that they continue to spend the money to develop films, but consumers also need to be protected from frivolous litigation and a scrapping of privacy.  This is a very interesting area of law, as it is currently being written before our eyes.