COICA: Copyright Protection Or Censorship?

Posted on February 9, 2011

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In November of 2010, the Senate Judiciary Committee attempted to move forward in cracking down on certain types of Internet piracy with the introduction of the Combating Online Infringement and Counterfeits Act (COICA).

Specifically, COICA targets Internet sites that sell counterfeit goods – from purses to prescription drugs. Those in the music and movie industries, among others, are large supporters of the bill, which they see as protecting their intellectual property from rogue websites.  PC Mag.com defines “rogue site” as “a web site that is set up to spread a virus, collect names for spammers or for some other illicit or repugnant purpose.”  The Web Host Industry Review quotes Senator Patrick Leahy, who introduced the bill along with Orrin Hatch, as saying, “We cannot excuse the behavior because it happens online and the owners operate overseas.  The Internet should be free – not lawless.”

With COICA in place, the Attorney General would be able to file an in rem civil action against domain names that are “dedicated to infringing material” (as defined in the COICA).  Under the bill, the Attorney General is required to send notice of an alleged violation and intent to proceed under COICA to the registrant of the domain name at the postal address and e-mail address provided by the registrant to the domain name registrar, if available, and publish notice of the action as the court may direct promptly after filing in court.

Many industry groups, including the ACLU and the Center for Democracy and Technology, have voiced opposition to the bill, which they claim is overly broad and gives the attorney general unchecked authority. Hillicon Valley: The Hill’s Technology Blog states that these opponents also argue that, “if passed, the bill’s provisions for blocking servers based in other countries may prompt those nations to respond in kind against U.S. websites.”  These groups see the bill as taking a step closer to what they foresee as dreaded Internet censorship.

A letter from Internet engineers states that COICA could have far-reaching negative implications for the domain name system. “If enacted, this legislation will risk fragmenting the Internet’s global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure. In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties’ ability to communicate.”  The Hill’s Technology Blog quotes Gigi Sohn of Public Knowledge as saying, “We are disappointed that the Senate Judiciary Committee this morning chose to disregard the concerns of public-interest groups, Internet engineers, Internet companies, human-rights groups and law professors in approving a bill that could do great harm to the public and to the Internet.”

So far, COICA has failed to pass in the U.S. Senate because it was held up by opposition from Sen. Ron Wyden (D-Ore.).  However, even without the passage of COICA, it is not impossible for the government to play a role in the Internet’s distribution of information. On November 26, 2010, The New York Times reported the shut down of over 80 sites and domains by the Department of Homeland Security’s Immigration and Customs Enforcement branch. Many of the sites were foreign in origin and said to be participating in illegal file-sharing.  One day, the information was available on the Internet, and the next, it was gone and visitors were sent to a notice that said, in part, “This domain name has been seized by ICE — Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court.” Some find this to be a terrifying notion and over-extension of government powers. Others see the moves as necessary to stopping an online free-for-all wherein no information or copyright is sacred.

We will keep you posted as this story continues to develop.

Elizabeth Ritter
Ritter Law Firm, LLC

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