There's more than a hint of theatrics in the draft PROTECT IP bill (pdf, via dontcensortheinternet ) that has emerged as son-of-COICA, starting with the ungainly acronym of a name. Given its roots in the entertainment industry, that low drama comes as no surprise. Each section name is worse than the last: "Eliminating the Financial Incentive to Steal Intellectual Property Online" (Sec. 4) gives way to "Voluntary action for Taking Action Against Websites Stealing American Intellectual Property" (Sec. 5).

Techdirt gives a good overview of the bill, so I'll just pick some details:

• Infringing activities. In defining "infringing activities," the draft explicitly includes circumvention devices ("offering goods or services in violation of section 1201 of title 17"), as well as copyright infringement and trademark counterfeiting. Yet that definition also brackets the possibility of "no [substantial/significant] use other than ...." Substantial could incorporate the "merely capable of substantial non-infringing use" test of Betamax.
• Blocking non-domestic sites. Sec. 3 gives the Attorney General a right of action over "nondomestic domain names", including the right to demand remedies from (A) domain name system server operators, (B) financial transaction providers, (C), Internet advertising services, and (D) "an interactive computer service (def. from 230(f)) shall take technically feasible and reasonable measures ... to remove or disable access to the Internet site associated with the domain name set forth in the order, or a hypertext link to such Internet site."

A few days ago, I attended oral arguments before the First Circuit Court of Appeals in the case of Joel Tenenbaum, a graduate student being sued by various record labels for sharing music files via a peer-to-peer service over the Internet (Sony v. Tenenbaum, docket available here).  I’ve already written up some of my thoughts about the possible outcome of Joel’s lawsuit over at my regular blog, Legally Sociable.

Here, I’d like to expand my analysis somewhat to cover Tenenbaum’s broader implications.  Many CMLP blog readers may be asking themselves, “So what?  What could swapping MP3’s on the Internet possibly have to do with the activities of citizen journalists?”

Under an ideal intellectual property regime, the answer would doubtless be “very little.”  Non-commercial use of music for personal entertainment bears little logical resemblance to news reporting, analysis, and advocacy.  One might reasonably imagine that IP law treats P2P music downloading differently from blogging about the news.

Unfortunately, in the real world, the law ends up treating blogging almost exactly like file sharing because both activities primarily fall within the purview of copyright law.  Moreover, 17 U.S.C. § 504(c) provides extremely flexible statutory penalties “as the court considers just.”

We received a request not long ago from one of the lawyers in our Online Media Legal Network who is looking for legal resources on a couple different issues tied to software development, particularly open source software development.  And frankly, they're the sorts of resources that we expect more and more lawyers will have need for.  Thus, we're reposting the requests here - along with my first stab at researching them - in the hopes of drumming up a bit of crowdsourcing to find the answers.

Call For Papers:

The High Tech Law Institute at Santa Clara University School of Law and the Institute for Information Law and Policy at New York Law School are pleased to announce a new annual works-in-progress series for Internet Law scholarship. The inaugural event will be held at Santa Clara University on March 5, 2011. Thereafter, the event will rotate between NYLS and SCU each Spring semester.