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Several days ago, the Senate Judiciary Committee voted unanimously to approve the Combating Online Infringement and Counterfeits Act (COICA), a bill that would allow the Justice Department to use an expedited process to shut down websites that primarily provide access to counterfeit goods or copyrighted material in violation of federal law. Major copyright and trademark owners in the movie, recording, retail, and professional sports industries have glorified the bill as an influential weapon capable of curtailing online piracy. However, the bill’s vague language needs much improvement and could allow enormous amounts of non-infringing content to be censored and removed from the web.
The bill targets sites that are “dedicated to infringing activities,” defined as having “no demonstrable, commercially significant purpose or use other than” offering access to copyright infringing or counterfeit goods and services. Merely linking to other direct sources of infringing content is considered “offering access” to such content. The Attorney General can commence “in rem” actions against the aforementioned sites and obtain injunctions requiring domain name registrars or Internet Service Providers to suspend access.
Scant notice requirements allow sites to be shut down before the owners receive any indication of the basis for such action. A letter or email sent to corresponding addresses listed in the domain registry is sufficient, while any additional publishing of notice is determined by the court.
More troublesome is the fact that sites will be shut down before any court decides that copyright, trademark, or any other kind of law has been broken. This enables unwarranted censorship of potentially non-infringing speech. Since sites become vulnerable by linking to other sources of infringing materials, even sites that don’t intentionally participate in infringing activities can be blacklisted. For example, a forum allowing users to post content may be shut down before it is able to remove links supplied by other users. Additionally, the blurry “dedicated to infringing activities” standard may sweep up sites that happen to link to sources of infringing material but also provide a host of other benefits to users. These results could constitute prior restraints on free speech.
In its haste to launch an offensive against online piracy, the federal government has staged a precursor to the kind of censorship condoned by the COICA. Last week, the principle investigative arm of the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), shut down over seventy websites as part of an investigation concerning copyright and trademark infringement. Now, users who attempt to access the sites are presented with a notice from the DHS instead. The ICE is authorized to promote homeland security and public safety by enforcing federal laws governing border control, customs, trade, and immigration. It most likely exercised jurisdiction over the sites because Internet piracy allows international users to steal American intellectual property.
Owners of the suspended sites have complained about lack of notice and, in at least one instance, claimed that they did not believe their site allowed access to any infringing material. A staffer at RapGodFathers.com, one of the first sites to be blocked, explained that the site primarily linked to mix-tapes of up and coming artists and that the site always complied with the rare DMCA takedown requests that it received in order to prevent links to illegal content on the site. It is important to note that RapGodFathers.com was also a community forum where hip hop fans could express opinions concerning news updates provided by the site or other relevant topics. It has subsequently been re-established under the domain name “RapGodFathers.info“.
There is certainly much more debate to be had before any form of the proposed COICA bill passes the full Senate and House of Representatives, but in the meantime it will be interesting to see how the public responds to the DHS’ test run.
– Andrew Farrell
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