Proposed: Sovereign Immunity for Big Media

Having heard that a House-version of "Protect IP" was introduced last week, I made a quick check to see if this bill also contained a provision outsourcing judicial functions to private corporations. Sure enough, it does. Here's the relevant text, the syntax carefully preserved (I recommend you navigate slowly; keep track of the sentence structure as you go and the concept will fall into place): "No cause of action shall lie in any Federal or State court or administrative agency against, no person may rely in any claim or cause of action against, and no liability for damages to any person shall be granted against, a service provider, payment network provider, Internet advertising service, advertiser, Internet search engine, domain name registry, or domain name registrar for . . . voluntarily blocking access to or ending financial affiliation with an Internet site, in the reasonable belief that -(1) the Internet site is . . . an Internet site dedicated to theft of U.S. property; and (2) the action is consistent with the entity's terms of service or other contractual rights." What is "an Internet site dedicated to theft of U.S. property?" Among other things, a site that: "is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code . . ." Title 17 of the United States Code has to do with copyright protection, and one of the sections in the definition of "site dedicated to theft" is a law making it illegal to "circumvent a technological measure that effectively controls access to a work protected" by copyright. Let's summarize: if a domain registrar, a service provider, a bank, cuts off access to your site or stops processing your transactions, based on your alleged failure to "confirm" that you aren't infringing a Hollywood copyright when they suspect you of so doing, then, as long as they have magic words in their TOS, you are totally fucked. They don't event have to sue you. Big Media can just shut you off without calling the FBI or filing a suit for copyright infringement. And you can't sue them. That's the "No cause of action shall lie in any Federal or State court" bit. (Interesting, how bills introduced in a Republican controlled House aren't shy about preempting state law.) You can't make this up.

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