A Royal Flush: The Poker Prof and his Full House React to the Protect IP Act–Part 1

Whenever I see one of these open letter thingys from the professoriate–particularly when it has to do with artist rights–I check the signatures for one name.

Yes, you guessed it.  The Poker Prof (aka Lawrence Lessig).

That’s about all I need to know.  I can tell you how the letter’s plot line will go just by knowing that one fact.  If I were a betting man, I would bet that the odds of anything Lessig’s name is attached to ending up with good news for professional creators is somewhere in the vicinity of 649,740 : 1.  Which, by the way, are the odds of a royal flush.  When you see Lessig and Samuelson on the same letter, the odds just got worse.  (See, e.g., Lessig, “The Starving Artist Canard“.)

Both names are found on a letter called the “Law Professors Protect IP Letter” sent to “Members of the United States Congress” on July 5, 2011. (“Members of the United States Congress”–is that a reference to Members in their individual or collective capacity.  Or does it mean some Members but not others–selected members such as Senator Wyden and not Senator Leahy, or Rep. Lofgren but not Rep. Smith?)

I wonder if these professors had read the public statements and testimony of Floyd Abrams regarding the Protect IP Act and its predecessor in the waning days of the last Congress.  Floyd Abrams has always been my ideal as a First Amendment lawyer and has probably done more to advance freedom of speech than any living U.S. attorney.  (Important speech cases before the U.S. Supreme Court where he appeared or wrote important amicus briefs include Branzburg v. Hayes, 408 US 665 (1972); Nebraska Press Association v. Stuart, 427 US 539 (1976), Smith v. Daily Mail Publishing Co., 443 US 97 (1979), Bose Corporation v. Consumers Union of US, Inc., 466 US 485 (1984); and United States v. Providence Journal Company, 485 US 693 (1988), and of course Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).)  And then there’s the Pentagon Papers.

Meaning that when it comes to Constitutional analysis of the First Amendment, experience before the U.S. Supreme Court–and, oh, yes, not to forget winning his cases–I would put my money on Floyd Abrams.  Lessig?  Not so much on the winning side, the cultural revolution of digital natives notwithstanding.

So I’m going to refer to Floyd Abrams for some of his analysis of the Protect IP Act juxtaposed to the Professor Letter.  Granted, Mr. Abrams didn’t draft his remarks in response to the Professor Letter and might well have more to say if he were to write those responses himself.  I don’t want to take anything away from his disagreement, but I do think that the responses are interesting.

Thesis of the Professors: The Protect IP Act Will Cause The End of The Internet and Western Civ

I suggest to you that the core problem of the professor group is that while they profess to be concerned about intellectual property theft online, there just doesn’t ever seem to be a solution that they like.

In this particular case, their argument fails because they elevate the rights of those speakers who steal the speech of creators over the rights of the creators of that speech.  This is a typical kind of sophistry we have come to expect from the anti-copyright crowd–probably because it is part of the unifying ideology they have developed to bind together the complicit community in the belief that there really is an alchemy that turns thieves into heroes.  Oh, cynical me.

Here’s the Professors’ thesis sentence (you remember those, right?): “Although the problems the Act attempts to address–online copyright and trademark infringement – are serious ones presenting new and difficult enforcement challenges, the approach taken in the Act has [1] grave constitutional infirmities, [2] potentially dangerous consequences for the stability and security of the Internet’s addressing system, and [3] will [sic] undermine United States foreign policy and strong support of free expression on the Internet around the world.”  All of these arguments fail, and I hope I will persuade you that they fail in a rather spectacular manner equal to Eldred and Grokster.

Grave Constitutional Infirmities

The Professors’ Letter identifies “grave constitutional infirmities” with Protect IP as follows:

“The Supreme Court has made it abundantly clear that governmental action to suppress speech taken prior to “a prompt final judicial decision. . .in an adversary proceeding” that the speech is unlawful is a presumptively unconstitutional “prior restraint,” the least tolerable infringement on First Amendment rights,” permissible only in the narrowest range of circumstances. The Constitution “require[s] a court, before material is completely removed from circulation, . . . to make a final determination that material is[unlawful] after an adversary hearing.”

In other words, what attracts people to Megavideo, Hotfile, Rapidshare, 4share, Limewire, The Pirate Bay and Isohunt is not the illegal stuff freely available, not the payments of various kinds for users to upload and download illegal content–no, no, it’s not that illegal stuff.

It’s the articles.

Ask yourself–did your mom ever buy that the reason you had the nasty stuff was because you read it for the articles?

And speaking of–the professors cite to obscenity cases in support of their point where the courts have ruled that stopping the exhibition of films on obscenity grounds absent a ruling of obscenity was unconstitutional.

Unfortunately, the cases cited do not deal with stolen obscene films.  So, I’m not quite sure what the point is.  But I can guess–it seems that the fundamental disconnect is that the professors just don’t see anything wrong with stealing intellectual property from “Hollywood.”  Like most of the shoddy reportage on the subject, “Hollywood” is painted with a very, very broad brush.  Because when you steal from “Hollywood” you are stealing from big corporations, and when you steal from big corporations, it’s not really stealing, don’t you know?

Most unfortunately, the professors seem to ignore the plain text of Protect IP as drafted.  I have to assume that they each actually read the draft text before putting their name to a criticism, even when in the company of luminaries like Lessig et al.  Let’s be clear–nothing moves in the Protect IP Act without a court order.  That means that ICE investigators review the facts, decide which cases they think they can make a probable cause showing on, they submit that information to a U.S. Attorney who decides what cases can be made before a judge, the U.S. Attorney submits those cases to a federal judge, and then the judge issues an order based on the cases that the judge thinks the U.S. Attorney has successfully carried the burden on.

This is all done under the Federal Rules of Civil Procedure (Rule 65 for those reading along) which has been on the books since at least the 1940s (and was the law before that with a different code section, if memory serves).  The Protect IP Act does not change anything about Rule 65 actions or hearings.  In the case of a rights holder’s action under Protect IP, the same process would happen as permitted under the statute, except with the private actor being required to make their case to a judge.

That’s what actually happens.  The Professors’ Letter is, I think, confused on this point–a court must order any action involving ISPs, ad servers, credit card companies or search engines.  Private actors cannot unilaterally force anyone to do anything without a court order.

Rule 65 recognizes that sometimes it is important to be able to get a short-term injunction against people who sure look like they are doing bad things, subject to the right–expressed in Rule 65–of those people to come forward and defend themselves on an expedited basis.  Rule 65 ex parte injunctions can be set aside in as little as 48 hours.  (Out of the 100s of cases ICE made under Operation in Our Sites relying in part on a Rule 65 injunction against domain names, I believe one defendant has exercised their right to challenge the seizure.  And it’s not like they couldn’t find counsel–start with the 100 odd professors on the Professor Letter, many of whom would probably have had the case taken by a legal clinic at their own law schools, a clinic that they either control or work with.)

The writers also assert that “the Act would allow courts to order any Internet service provider to stop recognizing the site even on a temporary restraining order or preliminary injunction issued the same day the complaint is filed.  Courts could issue such an order even if the owner of that domain name was never given notice that a case against it had been filed at all.”

That’s actually not quite entirely true either.  Protect IP requires that notice be sent to domain name registrants in a variety of ways that are listed in the bill unless the government is unable to find the registrant through due diligence–and convinced the court issuing the order that it had done so.

So like so many statements in the Professor Letter, there is a grain of truth–it’s possible that the domain registrant doesn’t get notice–but they blow right past the procedural protections to “the end of Western Civilization”.

Floyd Abrams wrote an extensive letter to the Senate Judiciary Committee regarding the predecessor to Protect IP and recently affirmed at a House IP subcommittee hearing that his positions had not changed as regards Protect IP:

“I am aware that [such legislation] has been criticized on First Amendment-related grounds by organizations such as the American Civil Liberties Union and certain human rights groups, organizations for which I have the highest regard….[But such] legislation does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.”

In fact, the Constitutional basis of the Protect IP Act is so well grounded that if the professors want to argue prior restraint, the issue is not with Protect IP, but with ex parte seizures.  Mr. Abrams makes this point succinctly: “The procedural protections under [such legislation] are so strong, uniform and constitutionally rooted that it is no exaggeration to observe that any complaints in this area are not really with the bill, but with the Federal Rules of Civil Procedure itself, which governs all litigants in U.S. federal

So as Mr. Abrams also said,  “[actions] against websites dedicated to infringing content based on extensive and continuous linking to facilitate infringement appear to rest on a solidly constitutional foundation. As for overbreadth in the linking context, it appears clear that neither a few inadvertent links to infringing material on an otherwise lawful website, nor some links to infringing websites for the purposes of public information or education, could be held to meet [the statutory] threshold [definition of rogue sites].”

Next in Part 2: “Mommy, Mommy, Johnny is Breaking the Internet!”

See also The Good Guys Win One: Seized Infringer Rojadirecta.com Loses Appeal But is Still Available in Google Autocomplete