Combating Infringement, Defeating Piracy, Stifling Free Speech or Violating Due Process? Depends On Whom You Ask.
Last week, the Senate Judiciary Committee, in an unusual show of bipartisanship (obviously caused by the evident and overwhelming support of the electorate in the midterm elections for more copyright legislation), voted unanimously to refer out of committee the "Combating Online Infringement and Counterfeits Act" ("COICA").
So, is this merely a tool to give prosecutors an expedited process to combat the evils of online infringement and piracy or is it seeking to censor the internet and create a blacklist of websites and consequently stifle the free expression of ideas?
Opting for the first view are the owners and protectors of copyrighted material, like the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA),
Major League Baseball, the NFL, Nintendo, Viacom and the U.S. Chamber of Commerce.
Coming down on the other side of the fence are most of the bloggers in this area of the blogosphere, the Electronic Frontier Foundation and a group of law professors who wrote this letter to the Judiciary Committee warning that the legislation was potentially unconstitutional.
What are the controversial provisions of this alternatively praised and vilified legislation? (If your Ambien prescription has run out, you can read this and achieve the same result.). For those of you who have Ambien, this is the "short" version:
- If an internet site is otherwise subject to forfeiture under statutes prohibiting infringement, or
- Is "dedicated to infringing activities" (primarily designed to, is marketed as or has no real use other than to offer infringing or counterfeit goods or services), and
- the internet site engages in such infringing activities and when taken together, such activities are central to the activity of the site or the sites accessed through a specific domain name, then
- the Attorney General can commence an "in rem" action against the site, get an injunction and require the domain name registrar to suspend operations of the domain name and the internet service provider to "take technically feasible and reasonable steps...to prevent a domain name from resolving to that domain name's Internet protocol address".
- The in rem action can be brought in any judicial district where the domain name registry for at least one of the involved sites is located or in D.C. if the domain name is not registered domestically.
- Notice of this action is sufficient if notice is sent to the postal and e-mail address that the registrar has for the web site and notice is published as directed by the court (no indication as to what this might be). It is therefore possible that the web site owners would not have any notice of the action until it is well under way.
- The Attorney General may then obtain an order, which can be served on the domain name registrar or the registry and the domain name registrar or registry can suspend operation of and may lock the domain name.
- The injunction may also be issued against any internet service providers who can then suspend the operation of any transmission to or from the subject website. The act provides them legal immunity for doing so.
The Act seems to be suspect in that it could amount to prior restraint of free speech and could be issued before a final court determination of actual wrong doing is obtained. Or, it could be that the courts find that this is a necessary tool in the battle against internet anarchy and lawlessness.
There is much yelling and cursing and accusing yet to be done before this becomes law. Stay tuned.
seven losses after being picked pre-season to be a Super Bowl contender. Their starting quarterback is injured. They've fired their coach and now, they forgot 