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Old 1st December 2011
Originally Posted by John Eppstein View Post
Monday, November 21st, 2011 by Sandra Aistars
Opponents of this legislation would have you believe that it would somehow give rightsholders unilateral ability to shut down any site that contains any infringing content.

This is incorrect. Rightsholders do not have the ability to act unilaterally. They do not have the right to seek to shut a site down or make it inaccessible, and the legislation only applies to sites that are “dedicated” to infringing activity – not sites with minimal amounts of infringing content.

Here, for the record, is how the process works:

1) A rightsholder identifies a website distributing her products without permission. She also notices that there are U.S. payment processors facilitating business with this website and/or U.S. ad servers placing advertisements there. She gathers the facts to demonstrate that the site meets the definitions of a site dedicated to theft of US property. Namely, that the site in question is “primarily designed”, “has only limited purpose or use other than” or is “marketed” to engage in, enable or facilitate violations of current U.S. copyright and trademark law; or that the site is taking deliberate steps to avoid knowing that it is breaking U.S. IP law, or is taking “affirmative steps” to “foster infringement”, such as through programs that give users rewards and prizes for uploading pirated content.

2) The rightsholder can send a written notification to the payment processor or ad network, if there is also advertising on the site, providing very specific evidence (under penalty of perjury) that the payment processor or ad network is working with a site that is dedicated to infringement as defined in the legislation. The rightsholder must additionally clearly show that immediate and irreparable harm will be done to the holder of the IP right in the absence of action by the payment processor or ad network.

3) If the payment processor or ad network disagrees with the facts presented by the rights holder, or if the accused website presents a counternotice disputing that it meets the definitions in the bill, the rightsholder must petition a Federal Court to evaluate the matter and issue an order confirming that the site is dedicated to theft of US property. These proceedings take place under the Federal Rules of Civil Procedure, which are the rules applicable to every litigation in Federal Court in the U.S.. The heightened standards of proof applicable to injunctions would apply to the rightsholder’s case.

4) If the Federal court issues an order declaring the site to be dedicated to theft of US property, the rightsholder may then serve the order on the payment processor or ad network to request it stop supporting the site’s activities.

The decision to pursue a rogue website under this process is clearly a big decision, and no simple matter in terms of process and cost for the rightsholder. Significantly, there are no financial damage awards available for rightsholders whose works have been infringed– only the ability to obtain a court order directing U.S. payment processors and ad networks to cease supporting the rogue site. Finally, and importantly, there are defined penalties for perjury and damages, including costs and attorneys fees recoverable against anyone who asserts a false claim.

In other words, the rightsholder must be very certain she can marshal all the evidence needed to forge ahead. There is both an explicit standard that their claim must meet, as well as a financial disincentive if her claim is deemed frivolous.

Under no circumstances can a private rights holder bring any type of action that would result in a site being blocked by an ISP or search engine. That capability is only afforded to the U.S. Attorney General, who may only do so after obtaining a Federal Court order that a site is “dedicated to infringing activity” (in a process conducted under the Federal Rules of Civil Procedure).
Get more FACTS:
More Scary – But Unsupported – Rhetoric
U.S. Consumers At Risk From Rogue Sites
Technically Speaking
What Are Rogue Web Sites?
Creative Community Boosts U.S. Economy

From this blog:
The Copyright Alliance Blog

Link thanks to Bob Ohlsson.

There has been a lot of nonsense and hot air bandied about concerning this bill. This should set the facts straight.
thanks john.