To the Industry, We're All Tapeworms (the E-PARASITE act)

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Written by OTW Legal Committee member Sarah Trombley

Apparently, the Internet likes pirates too much (blame Johnny Depp)—now people engaging in Internet activity of which the content industry doesn't approve are being labeled "parasites."

Yes, that's the name of the new IP bill that recently passed the U.S. House of Representatives: the E-PARASITE ACT. The OTW, like many other organizations (the Electronic Frontier Foundation weighs in with a post here), is concerned about the extraordinary overreaching of this proposed bill. In short, this bill would cut Americans off from so-called "foreign infringing sites" by, effectively, forbidding your ISPs to connect you to the sites and forcing search engines not to link to the sites. Not for nothing has this been called "the Great Firewall of America." In the United States, we have long realized that it's not fair or wise to force ISPs or search engines to be responsible for the data they transmit; instead, infringing sites themselves must be held accountable for their own actions. The "E-PARASITE" act permits the equivalent of cutting off everyone's telephone access to a number—and taking the number out of all directories and search engines!—because someone who uses it is accused of breaking a law. It's a terrible bill.

The OTW is particularly concerned with additional provisions tucked into the bill, which appears to significantly expand the definition of criminal copyright infringement. Among other things, the bill provides special protection for works "being prepared for commercial dissemination," which includes movies that are playing in movie theaters but aren't yet available on DVD or other formats. For fan-artists and others engaged in transformative works, it's often vital for them to be able to create their art while the work they're responding to is actually part of the national conversation--and that's when it's in theaters, not six months to a year later when the DVD is released. If Jon Stewart wants to comment on a movie, he doesn't have to (and wouldn't) wait til it comes out on DVD; transformative artists' works are no different from his commentary. And that means they need access to "cam" or other copies of a work right away. (A vivid example is Sloane's Star Trek Dance Floor, where she used cam footage of the rebooted Star Trek movie to illustrate her point "that [the director] had...largely ignored women." When talking to people at the time of the movie's release, Sloane said she "was surprised how many people didn’t seem to think that was a problem, or even that the issue existed"--and so she made a vid, using footage that, in the bill's terms, was "prepared for commercial dissemination," as a way of participating in the conversation as it was happening, not at some comfortably distant point in the future.)

Like the DMCA itself, this bill is an example of the industry practice of trying to cut down on fair-use rights, not by limiting the rights themselves, but by making it impossible to exercise them. Supporters of the right to produce transformative work shouldn't stand for this kind of subterfuge.

A final, technical note for the lawyers: while I'm not an expert in this area, this bill seems to have potentially serious due process problems, in that it appears to expand "minimum contacts" beyond what the Supreme Court presently allows. But I'll leave that to others.

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