Protecting Big Media at the Expense of the Integrity of Contract

NDAs will often provide that information otherwise confidential may be disclosed pursuant to a court order. The purpose of such a provision is to give the disclosing party notice and an opportunity to seek a protective order.

Senator Leahy's bill attacking business innovation seems to propose that banks and advertisers needn't wait on the cover of a court order to shut down internet "pirates."

If I'm reading the bill correctly, it would even appear to give big corporate interests license to abrogate terms of service.

Certainly it is common for sites that publish user generated content or utilities that host data or services for other businesses will have terms of service that permit the hosting company to cut off users who infringe copyright. Often the process follows the DMCA. Sometimes it doesn't. Remember how AWS terminated WikiLeaks.

Leahy's bill seems to make both courts AND contracts superfluous.

Sen. Leahy would immunize extra-contractual behavior by banks and big advertisers. Under his "voluntary" actions safe harbor, these companies could arguably:

• Violate their own contracts or terms of service with their customers, and not be liable for breach of contract.
• Violate their own privacy policies by sharing information about alleged pirates with others outside the scope of privacy policies.
• Collude and conspire with other companies to pursue pirates in ways that today would be illegal or possibly even criminal.

So if Sen. Leahy prevails, upstart businesses will really face a stacked deck. The little business already has limited negotiating power. Shouldn't an entrepreneur at least be able to plan activities around contracts entered into with the Lords of the Cloud?