It was a rare moment of bipartisanship. On Nov. 18, 2010, the Senate Judiciary Committee unanimously approved the Combating Online Infringement and Counterfeits Act (COICA) to attack the growing menace of so-called “rogue websites.”
The bill targets websites “dedicated to online piracy and the sale of counterfeit goods,” Sen. Patrick Leahy, chair of the Judiciary Committee and co-sponsor of COICA, said in a press release. “Rogue websites are essentially digital stores selling illegal and sometimes dangerous products.”
Others define rogue websites more broadly.
The term covers any sites that “materially contribute to, facilitate and/or induce the illegal distribution of” infringing or counterfeit items, Bob Pisano, president of the Motion Picture Association of America (MPAA), wrote in an op-ed supporting COICA.
All supporters of COICA agree, however, that rogue websites hurt U.S. businesses, consumers and the economy. “Each year, online piracy and the sale of counterfeit goods cost American creators and producers billions of dollars, and result in the loss of hundreds of thousands of jobs,” Leahy said. “This impacts companies of all types and sizes, the people who work there and consumers who rely on the authenticity of the products they purchase.”
COICA would authorize the Justice Department to use civil forfeiture laws to seize the domain names of rogue websites and to block U.S. residents from accessing foreign rogue sites with domain names that are beyond the reach of U.S. authorities.
Critics, however, assert that COICA would violate the First Amendment, harm Internet freedom around the world and endanger legitimate online businesses.
“[COICA] imposes drastic limitations on U.S. Internet users,” says Andrew Bridges, a partner at Winston & Strawn. “This could be an important first step in the U.S. government’s lockdown on the Internet.”
Even without COICA, the U.S. government has begun seizing the domain names of rogue websites. Officials seized nine domain names in June 2010 and another 82 names in November pursuant to the federal civil forfeiture law, 18 U.S.C. ? 2323.
This statute enables the government to bring in rem actions against property used in the commission of certain crimes, including criminal copyright infringement, or trafficking in counterfeit goods or services. If officials can convince a magistrate judge there is probable cause to believe some property was used in the commission of a crime, the judge can issue an order to seize the property. The property’s owner has no opportunity to offer a defense until after the property is seized. To get the property back, the owner must prove, by preponderance of evidence, that no crime was committed (or the government lacked some other basis for seizing the property).
Some experts question whether the civil forfeiture law properly reaches domain names. “Civil forfeiture laws were not written with domain names in mind,” says Prof. David Post of Temple Law School.
COICA would resolve any such doubts. It explicitly authorizes the Justice Department to bring in rem actions to seize domain names of rogue websites. And it goes much further.
It’s easy for the U.S. to seize domain names registered with a U.S. registry or registrar. (A registry manages a top-level domain, such as .com or .us. A registrar handles the sale of actual domain names, such as hotels.com or wikipedia.org.) However, foreign websites that are hosted overseas and that have domain names registered with overseas registries and registrars are beyond the reach of U.S. authorities.
When a rogue website’s name cannot be seized, COICA provides three other remedies. A court can order ISPs in the U.S. to block the domain name, thus preventing the ISPs’ customers from using that name to reach the site. A court can order financial transaction providers, such as Visa and PayPal, to block their U.S. customers from making online payments to the site associated with the domain name. Finally, a court can prohibit U.S. companies from serving online ads to any site associated with the domain name. These actions would cut off the rogue site from U.S. customers and revenue.
Some people find these remedies too similar to China’s censorship of the Internet, and they believe the approach will encourage other countries to engage in their own online censorship.
“Many countries are asserting their authority to shut down foreign websites that distribute information that violates local law. The U.S. is usually the voice opposing those efforts,” Post says. “We have a 200-year history of opposing censorship. If we give that up, there will be an avalanche of laws like this. That would have terrible consequences.”
Critics also worry that COICA is overbroad. The bill would empower the Justice Department to go after any Internet site “dedicated to infringing activities,” and COICA defines that phrase so broadly it might encompass ordinary search engines that provide some links to infringing material, or popular Web 2.0 sites where users post some infringing content or links to infringing content, according to Jonathan Band, a solo attorney who specializes in Internet law.
“Sites like YouTube could be considered ‘dedicated to infringing activity.’ Certainly Viacom thinks that,” Band says.
Then there’s the constitutional issue. Forty-nine law professors sent a letter to the Senate Judiciary Committee, warning that court orders under COICA would impose prior restraints on online speech in violation of the First Amendment. Supporters of the bill reject this, asserting that COICA would merely enable the government to protect IP rights, as provided by the Constitution. “Copyright law does not exist in opposition to our guarantee of free speech; it supports it,” Leahy said.
The 111th Congress failed to pass COICA before it adjourned, but the 112th Congress, which began in January, is widely expected to take up the bill again. The legislation has broad, bipartisan backing and is strongly supported by some powerful industry groups, including the Recording Industry Association of America, the MPAA, the U.S. Chamber of Commerce, and the Software & Information Industry Association.
“It is getting a lot of positive reaction from lobbyists on the Hill and I assume staff members as well,” says Sarah Bruno, a lawyer at Arent Fox Kintner Plotkin & Kahn.
But COICA has opponents, too. Many civil rights and online rights organizations don’t like it, and neither do many companies that rely on a growing and open Internet. “Lots of Internet and tech groups–like NetCoalition and the Consumer Electronics Association–are opposing COICA. They think significant changes are needed,” says Band.
COICA’s fate is uncertain. Says Band, “If it gets narrowed, it might move. Right now it is pretty broad and will encounter a lot of opposition.”