Between the entertainment industry honing in on infringers and the current presidential administration looking to “crack down” on illegal content online, it’s no wonder that Senator Leahy’s “Combating Online Infringement and Counterfeits Act” (COICA) has been making headlines again the last few months.
Briefly, COICA enables the Attorney General to institute an in rem action against the domain name of a website deemed to be “dedicated to infringing activities.” This means, if a site “engages in” any type of infringing activities where such activities, if “taken together” are “central to the activity” of the site, the site is in violation of COICA. Upon a finding of infringement, courts are authorized to issue injunctions against the domain name itself (as opposed to the registrant of the domain name), which may consist of ordering the domain name’s registrar and registry to “lock” the domain name. This “lock” effectively bans access to the site via the domain name. Courts would also be authorized to enjoin any “operator of a nonauthoritative domain name server,” a definition that could potentially extend liability to Internet Service Providers, requiring the operator to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.”
Many believe that the problem with COICA lies in its lax due process procedures, as a U.S. court can essentially shut down a website operated anywhere in the world without an judicial determination of illegal activities or any application of structured dispute resolution. Most jurisdictions would call such a process an unlawful prior restraint on speech, but Senator Leahy and his supporters are taking a route we’ve seen all too often in recent years, with the mentality of ‘if you aren’t doing anything wrong, then you have nothing to worry about.’
Although the Obama Administration has made copyright enforcement a key issue in the last two years, the feds have really been bringing on the heat, recently. The reasoning? Supposedly to promote economic growth and competition, job creation and protection of American innovation. One can’t help but look at such an altruistic statement with a healthy dose of skepticism when massive legislation like COICA pops up and the witness list endorsing the Act in Senate Committee hearing are corporate giants like the Go Daddy, Visa and Verizon.
So what about free speech? What about censorship? What about the right of ISP’s, domain registrars, domain owners, payment processors, and advertising associates to not have to cut off all services to a website simply because the site has been accused of something? As the Electronic Freedom Foundation has pointed out, the fact that the government can block the whole domain and not just the infringing “portion” of the site is what fuels the censorship fire. Critics also cite to the fact that copyright owners have already been provided the means to combat online infringement via the DMCA. EFF has stated, and probably accurately so, that
“COICA streamlines and vastly expands [misuse of DMCA provisions resulting in damage to fair use and free expression]; it would allow the Attorney General to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it's not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.”
Leahy’s quote that, “There's no First Amendment right that protects thieves […]” sums up the rebuttal, I suppose. It’s true that not all communications fall into the realm of protected speech, but is shutting down a communicative business without any recourse to an adversarial hearing, and possibly extending that same liability to its business affiliates, the most reasonable way to regulate theft of IP? Supporters claim that the legislative intent of the Act is to block sites whose principal business purpose involves engaging in blatant IP infringement, not those who utilize material protected by fair use or “accidentally link to a copyrighted image.” Simple enough, right? It’s not like the federal government is trying to pass a bill unabashedly resulting in Internet censorship and effectually extending U.S. Attorney General jurisdiction to, well, everywhere. Oh, wait…
And what about that proposed legislation that would allow the President to push a button to shut down the Internet?
It’s too soon to tell for sure if COICA will go through, and Senator Leahy most certainly continues an uphill battle. But with an issue like global Internet regulation and the kind of conglomerate lobbying that COICA is garnering in Washington, this whole thing has to make even the most faithful supporter of the American political system ask themselves, ‘Is this going to be a case of money talks and freedom walks?’
