Congress Should Protect the Rights of American Creators with Site-Blocking Legislation

It is time for Congress to update the copyright laws to the new techno- logical capabilities of the internet in the third decade of the 21st century. [...] 43, James Madison, often referred to as the Father of the Constitution, justifies and explains the express grant of power to Congress in the Constitution—along with the power to create federal courts, to create money, and to create an army and a navy—to secure the “exclusive right” in a copyright.9 In justifying what has come to be referred to as the Copyright and Patent Clause in Article 1, Secti. [...] Unfortunately, a subset of libertarians—who advo- cate for anarchism in the physical world and in the digital domain of the internet—have created confusion about the protection of copyrighted works on the internet.26 But the government’s legal recognition and protection of intellectual property rights like copyrights is the same legal recognition and protection that the government provides for all. [...] The copyright owner must typically demonstrate that (i) the website is substantially engaged in piracy; (ii) the site block is reason- able and proportionate to the harm caused by the website; and (iii) blocking the website is necessary to stop the infringing conduct, as opposed to another available remedy.83 These courts also generally consider the cost of the blocking order and the impact the bl. [...] See 2 williAM BlACKStone, CoMMentArieS on tHe lAwS oF englAnd *2 (“There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”).