Google chief Eric Schmidt this week expressed concern about a bill that would allow the U.S. government to go after "rogue Web sites" that contain infringing content, seemingly suggesting that Google would not comply with certain provisions of the bill.
A coalition of Internet companies that also includes Google, meanwhile, also took issue with the legislation, though the group believed a solution could be reached.
In a discussion with journalists after a keynote at Google's Big Tent conference in London, The Guardian reports that Schmidt said "if there is a law that requires DNSs ... to do X and it's passed by both houses of Congress and signed by the president of the United States and we disagree with it then we would still fight it."
The Guardian framed it like Schmidt was discussing ISP efforts to block the Pirate Bay, but it appears he was actually discussing the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act, a recently introduced bill that would allow the government to get court orders that would require ISPs, search engines, ad networks, and online payment processors to stop supporting sites with pirated content. Comcast couldn't direct traffic to these sites, for example, nor could Google include links in its search results to an infringing site.
"If it's a request the answer is we wouldn't do it, if it's a discussion we wouldn't do it," Schmidt reportedly said.
This did not go over well with rights holders like the Motion Picture Association of America (MPAA). In a blog post, MPAA's Michael O'Leary said "as an American company respected around the world, it's unfortunate that, at least according to its executive chairman's comments, Google seems to think it's above America's laws."
"We've heard this 'but the law doesn't apply to me' argument before – but usually, it comes from content thieves, not a Fortune 500 company. Google should know better," O'Leary continued.
The Recording Industry Association of America (RIAA) had similar thoughts. "This is baffling. As a legitimate company, Google has a responsibility to not benefit from criminal activity. In substance and spirit, this contradicts the recent testimony of Google's General Counsel that the company takes copyright theft seriously and was willing to step up to the plate in a cooperative and serious way," the group said on its blog.
In a statement, Google backtracked a bit on Schmidt's comments.
"Free expression is an issue we care deeply about, and we continue to work closely with Congress to make sure the PROTECT IP Act will target sites dedicated to piracy while protecting free expression and legitimate sites," a spokeswoman said via email.
Continue Reading: Pros and Cons of PROTECT IP
Pros and Cons of PROTECT IP
Why does Google object to the bill? Earlier this week, NetCoalition—a group that includes Google, Yahoo, eBay, and others among its members—said that it supports the underlying goals of the bill, but has concerns about how it will achieve them.
The PROTECT IP Act is based on the Combating Online Infringement and Counterfeits Act (COICA), which PROTECT IP sponsor Sen. Patrick Leahy introduced last year. That would have allowed the U.S. government to seize domains with infringing content and require ISPs to cut off connections with the offending sites. The Senate Judiciary Committee approved the bill during last year's lame-duck session, but it saw no further action.
In a call with reporters, NetCoalition executive director Markham Erickson said PROTECT IP is "in some ways much better [than COICA], but in some ways much worse."
Specifically, NetCoalition takes issue with a clause that allows private right of action, or the ability for the average person to sue over violations of the bill. This, Erickson argued, will "create an explosion of litigation."
Just like the East Texas District Court has become a haven for patent legislation, another district court will become copyright lawsuit central. A plaintiff will declare that a site is dedicated to infringing content, a judge will declare it so, and orders will go out demanding ISPs, search engines, ad networks, and online payment processors stop working with and linking to these sites, he said.
"The problem is, there are thousands and thousands of sites we're not aware of that are engaging in illegal activity," Erickson said. "We'll start receiving thousands and thousands of these requests [and it will create] a new notice and takedown regime without the due process" provided in the Digital Millennium Copyright Act (DMCA).
Erickson pushed for law enforcement to work with NetCoalition members rather than allow private rights of action. "We are very concerned about opening up this flood of private litigants that would sue our companies," he said.
NetCoalition is also concerned that the bill does not have the appropriate safe harbors. "If an ad network that also happens to be a blogging company takes action on ads but didn't happen to catch that somewhere on a user-generated content page, someone put up a link to that site and they didn't see it, they would be liable for it."
The definition of infringing content also needs to be narrowed even further, he argued. "If you comply with the DCMA, it should be clear that you're not dedicated to infringing content," Erickson said.
Erickson was confident that a compromise could be reached. He pointed to Internet gambling legislation as a model. That banned payment processors from accepting funds from online gambling sites, effectively killing them. Sites with infringing content "are only there to make money," Erickson said. "If you're not getting paid ... you can't have ads, [so] why stay in business?"