BOB GARFIELD:

We just heard an example of self regulation, ISPs agreeing to police the behavior of their users, but there are also government regulations in the works. One bill making its way through Congress is called Protect IP or, ready for this, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011. Whooh!

The act would allow the Justice Department to label a website an infringing site, meaning that that site is misappropriating copyrighted material. Under Protect IP, if a site is deemed infringing, advertising companies couldn't work with it, payment processors like Visa or MasterCard couldn't handle its transactions, search engines couldn't include the site in search results and your ISP could block it.

Techdirt’s Michael Masnick has several problems with the Protect IP legislation, but Masnick’s biggest issue is that the definition of an infringing site is too broad and too vague. And that's a big problem, he says, for innovation.

MICHAEL MASNICK:

When the player piano first came about, that was declared as dedicated to infringing activity, when the radio first came about, when cable television came about, when the VCR came about, it was said that the VCR would – would act to the movie industry as the Boston Strangler, when YouTube came about, and all these things were declared as dedicated to infringing activity.  

And under a law like Protect IP, by making a case that that's true, you could potentially have locked out all of these technologies and not allowed them to become a very legitimate part of all of these industries.

BOB GARFIELD:

Stifling innovation.

MICHAEL MASNICK:

Mm-hmm [AFFIRMATIVE].

BOB GARFIELD:

But more than that, a broad definition, you've written, would raise the question of legality of things that we really don't think are or should be illegal.

MICHAEL MASNICK:

That's the big concern. As an example of this, the advertising firm WPP recently put together a big list of sites that they decided were dedicated to infringing activity. This list was put together with the help of Universal Music, Paramount Pictures and Warner Bros. Studio.

And some of the names on that list are sites that you would not normally think are dedicated to infringing activity. And that includes the Internet Archive which is, you know, one of the most popular, most useful research tools out there.

Also on that list, Vibe.com. Vibe Magazine was founded by Quincy Jones. It’s considered the leading classic magazine in publication around hip hop and R&B, and yet, it's on this list. Based on the fact that certain parties declare it dedicated to infringing activity, you know, it can run afoul of Protect IP and suddenly, you know, basically be put out of business by something like this.

BOB GARFIELD:

It gets so convoluted that Universal Music has gone after some of its own artists because those artists, like 50 Cent [LAUGHS] put their music on their websites.

MICHAEL MASNICK:

Yeah, 50 Cent has his own personal website. There's also a - an official Universal Music website. His own personal website gets a lot more traffic, and it appeared on this list of sites dedicated to infringing activity, his own personal website. And he is a Universal Music recording artists. And Universal Music helped put together this list.

BOB GARFIELD:

You not only report on the issue of copyright infringement, but you are yourself right smack in the middle of a controversy, based on some [LAUGHS] photographs which, of course, were taken by monkeys.

MICHAEL MASNICK:

I was wondering if this was gonna come up.

Yes, there was a, a news story that was making the rounds last week about a photographer who was in Indonesia and had left his camera out in a jungle somewhere or a nature preserve, and some monkeys apparently happened on the camera and played around with for a while and ended up taking –

[BOB LAUGHING]

- pictures of themselves. The pictures are quite amazing, actually –

[BOB CONTINUES LAUGHING]

- when you look at them. And certainly lots of news sources covered just the fact that these monkeys took these self portraits.

But what struck us was that the [LAUGHS] images had copyright notices on them directly, and we began to wonder whether or not those copyright notices were legitimate. And that's because, generally speaking, it's the photographer — whoever actually takes the shot – is the one who gets the copyright, even if you're using someone else’s camera. So in this case the photographer – happens to be the monkey [LAUGHS] which raises all sorts of interesting  legal questions. And, in general, animals are not allowed to possess copyright. You know, if you look at the law, it's seems pretty clear that these photographs are — are technically in the public domain.

BOB GARFIELD:

And yet?

MICHAEL MASNICK:

And yet, the person who owned the camera, he appears to be claiming that he has the copyright and then licensed it to a group called Caters News Agency and they sent us a request to take down the images, saying that we can't post it.

BOB GARFIELD:

They aren't even necessarily asserting that they or the photographer own the copyright. They just made the point that you don't own it and, therefore, you have no right [LAUGHS] to post it, which means anybody could decide to be the copyright police.

MICHAEL MASNICK:

In fact, we don't believe that the photographer who owned the camera or Caters News Agency technically owns the copyright either. We could turn around and demand that they take down their uses of the photos as well – [BOB LAUGHING] — based on — based on heir own logic.

BOB GARFIELD:

The reason I'm – I’m making you go through this ridiculous [LAUGHS] story is that it kind of reminds me of the Protect IP Act itself, which presumes to be able to know who’s got rights and who hasn't. I guess your point of view is their ability to do that is no better than the monkey people.

MICHAEL MASNICK:

[LAUGHS] And the problem with the Protect IP Act, like the – the monkey people [LAUGHS] and the question of the monkey photographs – is that it's not so simple, and there are a lot of questions that are raised that can't be answered in something as simply as saying, well, that is clearly, without a doubt, infringing, without an actual legal process to determine whether or not that really was infringing. And that — and that's a big problem with the Protect IP Act.

BOB GARFIELD:

All right, Michael, thank you very much.

MICHAEL MASNICK:

Thanks for having me.

BOB GARFIELD:

Michael Masnick is editor of Techdirt and founder of Floor64, which does business and tech analysis for companies.

[MUSIC UP AND UNDER]

Hey, if you want to see the monkey, and you really want to see this monkey, go to our website, onthemedia.org.