UPDATE: New Version Of COICA Introduced

Posted on July 13, 2011

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As discussed previously on this blog in November 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). In February, a hearing was held to examine the impact of the online infringement and counterfeit sales. On May 12, 2011, a new version of COICA was introduced, spearheaded by Senator Leahy and others, entitled “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2001” (aka The PROTECT IP Act of 2011).  The text of the bill may be found here.  The Protect IP Act of 2011 incorporates concerns raised by stakeholders to the initial bill.

The updates included in the Protect IP Act of 2011 include several new measures. To begin with, the bill includes a narrower definition of an Internet site “dedicated to infringing activities,” which include plagiarizing information or providing entertainment that is copyrighted. This becomes pertinent when considering sites such as Youtube, Torrent sites and other entertainment outlets that provide free services and access to copyrighted materials. Other provisions include the right of both the Attorney General and rights holders to bring actions against online infringers operating an Internet site where the site is “dedicated to infringing activities,” but with remedies limited to eliminating the financial viability of the site. Lastly, there are requirements placed on plaintiffs attempting to bring an action against the owner or registrant of the domain name used to access an Internet site with such charges, before bringing an action against the domain itself.

In a press release on Senator Leahy’s website, Leahy states, “The legislation will protect the investment American companies make in developing brands and creating content and will protect the jobs associated with those investments … It will also protect American consumers, who should feel confident that the goods they purchase are of the type and quality they expect. The Protect IP Act targets the most egregious actors, and is an important first step to putting a stop to online piracy and sale of counterfeit goods.” Leahy aims to prevent the constant flow of information exchange on the Internet by those who were not the original holders of those ideas or information.

Larry Downes, a commentator on Forbes business blog believes that the Protect IP Act of 2011 is even worse than the original bill. The definition of an Internet site “dedicated to infringing activities,” remains broad and vague, and therefore up for dispute. Secondly, another new provision encourages advertising networks and financial transaction service providers to cut ties voluntarily with domains it believes are “dedicated to infringing activities.” As reported on CNet News, “as long as actions taken in good faith and with “credible evidence,” then Protect IP immunizes those providers from liability for damages caused by erroneous actions against domains.” Unfortunately, an error of this magnitude could irrevocably damage the reputation of an innocent website.

As reported on CNet News, “with minimal court proceedings and perhaps without any opportunity for the defendant to respond or participate, the draft law would enable the Department of Justice or a private party to effectively shut down a nondomestic Web site, putting the burden on the owner/operator to prove that the site is not ‘dedicated to infringing activities.’” The Act similarly authorizes a rights holder who is the victim of the infringement to bring an action against the owner or registrant of said Internet site, regardless if domestic or foreign, and seek a court order against the domain name registrant, owner, or the domain name.

Overall, it seems that this revision of the Protect IP bill will not be the last, and that digital technology will determine the ways in which information is exchanged. Leahy’s attempt is causing disruption, but for the truly criminal, there are loopholes around his restrictions that attempt to regulate information exchange. Furthermore, most commentators feel that the battle Leahy is fighting is a lost cause in an ever-changing environment of digital technology, where the future of information outlets is uncertain.

Elizabeth Ritter
Ritter Law Firm, LLC

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