Florida Bill Seeks to Protect IP Owners by De-Anonymizing Web Sites

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How can owners of audio-visual intellectual property effectively fight theft or unauthorized use of their property online if they cannot identify alleged violators? Florida’s legislature is considering a bill which would require all persons who “own[] or operate[] a website or online service dealing in substantial part in the electronic dissemination of commercial recordings or audiovisual works, directly or indirectly, to consumers in this state” to conspicuously publish the contact information of its owner. The Florida legislation, currently known as Senate Bill 604/House Bill  271, or the “True Origin of Digital Goods Act,” would require web sites owners to reveal their “correct name, physical address, and a telephone number or e-mail address,” in order to facilitate claims by copyright holders for unauthorized use of intellectual property.  The bill would make anonymous web sites that “[d]eal[] in substantial part in the electronic dissemination of commercial recordings or audiovisual works, directly or indirectly,”  subject to suit and injunctive relief unless they comply with the proposed law.

The current version of the bill seeks to protect owners of “commercial recording or audiovisual work” which is defined as anything an “owner … agent, or licensee has disseminated or intends to disseminate,” but which expressly excludes video games, video game streaming, or depictions of video game play. The bill’s scope would allow any affected copyright holder to seek a court order requiring a web site owner or operator who is hosting commercial recording or audiovisual work to disclose their true and correct name, address, and either a telephone number or e-mail address conspicuously on the web page. Notably, ISPs and web hosting providers are exempted from the bill. The bill also clarifies that the term “website” does not include “a homepage or channel page for the user account of a person that is not the owner or operator of the website upon which such user homepage or channel page appears,” which appears to be a nod to web sites like YouTube and Vimeo that host content populated by others.

The bill allows an owner, assignee, authorized agent, or licensee of a commercial recording or audiovisual work, after providing 14 days’ notice of the claim and opportunity to cure, to bring a private civil cause of action to obtain a “declaratory judgment that an act or practice violates this section and enjoin any person who knowingly has violated, is violating, or is otherwise likely to violate this section.” The Court may then “make appropriate orders to compel compliance with this section.” The prevailing party in such an action is entitled to recover “necessary expenses and reasonable attorney’s fees.”

The bill includes safe harbors, including exceptions for services providing hosting for user supplied content in accordance with Section 230 of the Communications Decency Act, and if  the material on a website includes “excerpt[s] consisting of less than substantially all of a recording or audiovisual work”, which appears to suggest a “fair use” exception.

Critics, like the Electronic Frontier Foundation (EFF) have decried this legislation as “a dangerous anti-anonymity bill” and pointed out that other states have used similar laws as pretext to justify police raids on music studios and justify otherwise illegal restrains on communication. Further, as EFF points out, this law could be used to potentially compel anonymous bloggers to reveal themselves or risk having their means of communication enjoined by Court order.

Still, other questions remain unanswered.  The scope of “appropriate orders” authorized by the bill is undefined – may the Court enter an injunction to require an ISP to take down the offending web page? May the Court order a party to add or, if requested, update contact information?  May the Court order that the offending web site content be barred from access in Florida, only? Given the world-wide reach of the Internet, how does this law apply to a web site hosted outside of the state of Florida but available to be viewed by Floridians? May copyright holders obtain default judgments against web sites hosted out of state, and attempt to enforce the injunctive relief in other states?

Further, several aspects of the bill appear to contradict, and possibly be pre-empted by Federal law. On its face, the bill appears to intersect with or be pre-empted by the Copyright Act (17 U.S.C. § 301(b)), the Digital Millennium Copyright Act (17 U.S.C. §512, et seq.), and the regulations implementing the Digital Millennium Copyright Act (37 C.F.R. 201.38) requiring the designation of an agent for receipt of notice of claimed infringement. The apparently extra-territorial reach of the bill would also appear to conflict with the federal government’s exclusive power to regulate interstate commerce. Finally, the bill appears to distinguish whether identification of the owner, as a First Amendment-protected speaker, is necessary based upon the content of the speech. The US Supreme Court has regularly rejected content-based regulation of speech, casting the constitutionality of the bill in doubt.

Regardless of the many issues created by the True Origin of Digital Goods Act, the Legislature appears poised to create a powerful new weapon to protect intellectual property holders in Florida.

For more information on this topic. please contact the author, Drew Hinkes, on the firm’s Dispute Resolution Team.