Five Ways Congress Can Fix COICA Copyright Bill

by on November 19, 2010 · 15 comments

On November 18, the Senate Judiciary Committee unanimously approved the “Combating Online Infringements and Counterfeits Act” (COICA). The bill would enable the U.S. Attorney General to obtain a court order disabling access to web domains that are “dedicated to infringing activities.”

These “rogue websites” are a real problem, as the website Fight Online Theft explains, so it’s a good thing that Congress is working to address them. However, some of COICA’s provisions raise profound constitutional concerns, and the bill lacks adequate safeguards to protect against the unwarranted suspension of Internet domain names, as the website Don’t Censor the Net argues. The bill also doesn’t provide a mechanism for website operators targeted by the Attorney General to defend their site in an adversary judicial proceeding. This week, a group of over 40 law professors submitted a letter to the U.S. Senate arguing that COICA, in its current form, suffers from “egregious Constitutional infirmities.”

To address these concerns, CEI is urging Congress to amend COICA to provide for more robust safeguards, including:

  • ŸProviding a meaningful opportunity for Internet site operators to challenge before a federal court an Attorney General’s assertion that their site is “dedicated to infringing activities” prior to the suspension of their domain name;
  • Requiring that the Attorney General, upon commencing an in rem action against a domain name, make a reasonable and good faith effort to promptly notify the site’s actual operator of the action;
  • Clarifying the definition of an Internet site “dedicated to infringing activities” to ensure that websites with nontrivial lawful uses that facilitate infringing acts by third parties will not face domain name suspension if their operators:
    • Comply with legitimate takedown requests from rightsholders;
    • Do not receive a financial benefit directly attributable to infringing activities;
    • Do not design their site primarily for the purpose of facilitating infringing activities; and
    • Do not induce infringing activities.
  • Instructing the Department of Justice and federal prosecutors not to request that domain name registrars, registries, or service providers suspend domain names that have not been deemed to be “dedicated to infringing activities,” or otherwise unlawful, by a federal court; and
  • Requiring the Department of Justice to compensate domain name registrars, registries, and service providers for any reasonable costs they incur in the course of disabling access to infringing domain names.

EDIT 11/24/10: After reviewing in greater detail the amended version of the bill (PDF), I’d like to suggest a sixth change:

  • Eliminating the “Voluntary Actions” clause, which grants blanket immunity from civil liability to any domain name registry, registrar, financial provider, or ad service that “voluntarily” disables a website that it reasonably believes to be dedicated to infringing activities.

  • http://twitter.com/binarybits Timothy Lee

    Why should the Department of Justice compensate the DNS providers? Shouldn’t the copyright holders who are getting the benefit pay the costs?

  • Ryan Radia

    Ideally, rightsholders would bear the enforcement costs, but how would you administer such a system? Genuinely “rogue” websites (i.e. The Pirate Bay) infringe on the rights of hundreds, if not thousands, of rightsholders. I don’t know of any workable method by which the DOJ could decide how much to charge each rightsholder for enforcement costs. Besides, were it amended to include sufficient safeguards, COICA should only impact the real bad guys who are engaged in infringing activities on a criminal scale. What’s so bad about government bearing the costs of enforcement in such instances? Even many libertarians approve of the state bearing the burden of prosecuting violators of physical property rights, after all.

  • http://bennett.com/blog Richard Bennett

    Should victims of burglary pay the police to investigate, the DA’s to prosecute, and the prisons to house, feed, and clothe the offenders? Duh.Paul Vixie wrote a post in CircleID recently pointing out that the majority of domain registrations these days are for malicious sites. Registrar costs for redirecting domains are negligible.

  • http://srynas.blogspot.com/ Steve R.

    I thought the TLF was about eliminating regulation!

  • Ryan Radia

    We are! However, I, like many libertarians and TLFers, believe that defining and enforcing the terms of intellectual privilege in a way that furthers social welfare is one of the few legitimate, constitutional functions of government. Rogue websites that flout U.S. copyright, patent, or trademark statutes harm society by undermining the incentive to create new ideas and expressions. As long as we continue to confer temporary intellectual monopolies, Congress has a responsibility to keep intellectual property laws up to date and ensure that they include reasonable mechanisms to prevent infringement. On the other hand, Congress must also ensure that intellectual property laws do not grant excessive intellectual privileges or hinder other vital interests (such as freedom of speech). Arguably, Congress hasn’t done a very good job of fulfilling that responsibility to date, which is why our current intellectual protection regime is deeply flawed. But from time to time, Congress actually makes positive changes to intellectual property statutes. For example, I think that the DMCA, aside from its abhorrent anti-circumvention provision, is a reasonably well-crafted statute that has arguably furthered social welfare. Similarly, I believe that a narrowly crafted version of COICA would promote social welfare.

  • http://bennett.com/blog Richard Bennett

    Copyright is theft, Ryan, information wants to be free and will create itself as soon as the government’s shackles are removed. Who needs Hollywood when we’ve got kittens on YouTube?*

    *Note to Copyleftists: This is sarcasm.

  • http://srynas.blogspot.com/ Steve R.

    As a conclusion from my side, let me briefly summarize my concerns.1. To me there is a significant and troubling credibility gap. Laws that protect business are considered “good”, yet laws that protect the consumer from business abuse are considered “bad”. This is not a level playing field based on free-market principles.2. Many of the laws that have been recently passed or are currently being considered for passage violate due process. That is those who want to protect their so-called intellectual property believe they have a right to use technological tools such as filtering, network inspection, and wiretapping without constraint to find those believed to be infringing. While I can sympathize with someone wishing to protect their property, they do not have a unilateral (hypothetical) right to “break into” someone’s house and search it for supposed infringing content (that may not even be there) at will.3. Protecting so-called intellectual property is a growing bubble in a self-feeding frenzy. It keeps growing ever more onerous. Not only that, but the “stronger” the laws seem to become, the demands for increased “protection” become ever stronger to combat the ever growing belief of “theft”. We have more thieves because the law is turning us into thieves.3a, As a subset of the bubble, there is the old adage of “he who lives by the sword dies by the sword”. We, the US, may be top-dog now. Strong intellectual property laws may seem like a good self centered idea for extorting revenue, But growing nations such as China and India may discover the power of so-called intellectual property. Who holds our debt? We may soon be eating crow,

  • Ryan Radia

    I largely agree with your second and third points, and I’m very sympathetic to your first one as well. Given Congress’s track record, we should indeed be very skeptical whenever large content companies are pushing for new IP protections or enforcement mechanisms. That’s why I’m so worried about Congress passing COICA without first narrowing its scope substantially and adding in robust safeguards. Even then, I suppose I could be convinced that requiring domain name servers to disable infringing websites remains a bad idea. But, after after having read lots of thoughtful (and not so thoughtful) arguments on both sides of the issue — including letters from NetCoalition, law professors, Internet engineers, content companies, newspaper publishers, and CDT — I don’t think the bill is beyond salvation (in theory, at least).

    Tom Bell argues that technological evolution will likely one day render copyright obsolete. I hope he’s right. The downside of intellectual privilege troubles me profoundly, because it hinders other fundamental rights. Still, I see it as a “necessary evil” that may well eventually become just plain evil. That day cannot come soon enough.

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