Kat.ph seizure raises specter of Cybercrime Law’s ‘takedown clause’

MANILA, Philippines — The highly controversial Cybercrime Prevention Act of 2012 may be suspended for now, but recent moves by the Intellectual Property Office of the Philippines (IPOPHL) raise the specter the IP office’s new powers enable the cybercrime law’s “takedown clause.”

On Friday, the IPOPHL ordered a 72-hour temporary restraining order (TRO) against kat.ph, a popular torrent-listing site around the world as notorious as The Pirate Bay, after a complaint filed by the Philippine Association of Recording Industry Inc. (PARI) for allegedly hosting copyrighted OPM materials.

Abe Olandres, a popular blogger and technology expert, raised concern that the recent move by IPOPHL puts all Philippine domains and websites under the chopping block if they are alleged to be hosting copyrighted content on their websites.

“With this precedent, it is now clear that any similar TRO can be placed against any other PH domains that provide or link to illegal content,” Olandres said in a blog post.

Sites that could get affected include those that host or link to copyrighted content; publishes music lyrics; share cracks or hacks to devices; and post videos of locally produced content, among many others.

“This reminds us of the takedown provisions of the currently suspended Cybercrime Law,” said Olandres, who also owns and operates a domain and Web hosting company. The “takedown clause” in the suspended Cybercrime law gives the Department of Justice broad powers to issue a takedown notice against any website it finds to be violating the law without the need for a court warrant.

“If your hosting provider and domain registrar is based out of the country, then a local TRO might not have any affect,” he added. “Otherwise, if your service provider is a local company or one the telcos (which acts as a data center), then the same can also happen to you.”

Though the move could send a chilling effect on other local websites, targeting the infringing website’s domain could be futile in the intent to curb copyright infringement online as it is easy to circumvent.

In the case of kat.ph, the people behind the site immediately redirected the listing to a new domain in another country just within minutes after the kat.ph’s domain seizure, making the content in question available again to users.

The domain owners, however, have not signified if they intend to argue their case in the Philippines.

New powers

According to lawyer Romel Regalado Bagares of the Roque & Butuyan Law Offices, IPOPHL’s move stems from its new administrative powers bestowed upon it due to the recent enactment of the new IP code, as well as revisions to its administrative procedures two years ago.

Under an Office Order issued in 2011, the IPOPHL’s Bureau of Legal Affairs (BLA) Director was given the power to issue a 72-hour temporary restraining order against an alleged copyright violator provided “that the applicant therefore will suffer grave injustice and irreparable injury.” The same order was used by IPOPHL in dispensing the case against dotPH and kat.ph.

“An administrative procedure is separate and distinct from the civil and criminal aspects of the case. It is also quicker compared to the regular civil and criminal remedies,” Bagares said.

The newly enacted amendments to the IPO Code, which caused an uproar online for being too restrictive in the importation of books and optical media, has placed broad enforcement powers in the hands of the IPOPHL which were only available before to various law-enforcement agencies.

“IPO now has enforcement powers, with the cooperation of PNP/NBI and other law enforcement agencies. It also has ‘visitorial powers’ to ensure compliance by businesses of IP laws. This was not available before,” Bagares explained.

Given the takedown of kat.ph, Bagares said local websites should be wary of this new capability of IPOPHL.

“Local websites may be subject of the same procedure if they host copyright-infringing materials,” he added.

dotPH’s swift action

Acting on the complaint of the Philippine Association of Recording Industry Inc. (PARI), the IPOPHL dispensed a quick 72-day temporary restraining order on Friday against dotPH Domains Inc., the local domain registrar of kat.ph, effectively suspending access to the site from anywhere in the world.

dotPH said it acted swiftly on the order of suspending the kat.ph domain as it is company policy to comply immediately with government orders directly affecting domains under its registry.

“If there is a determination that the domain is being used in violation of law, an order issued by a court or relevant authority to suspend the domain, then of course we will comply like we have in this case,” said Emil Avancena, dotPH spokesperson, in an email interview with InterAksyon.com.

Avancena said PARI representatives had initially approached dotPH in 2011 to request the suspension of the domain but the latter did not comply only agreed “if provided with an order from a court or appropriate authority.”

He said this is also the first time that the government had asked them to suspend a domain due to violation of Philippine laws.

Last year, InterAksyon.com reported that torrent-listing sites such as kat.ph were exploiting weak laws in the Philippines governing copyright and domain ownership online in operating their websites, which had already been outlawed in some countries. –J.M. Tuazon, InterAksyon.com