WASHINGTON, D.C.—Free speech fretters are already crying foul about a bill—"The Combating Online Infringement and Counterfeits Act"—introduced late Monday by two senators, Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah), that seeks to drive a stake through the heart of websites whose predominant raison d’être is to enable access to other people’s copyrighted works. There also are mechanisms included in the bill that would allow the government to effectively kill allegedly infringing websites hosted in foreign countries.
The actual legislation is insanely short—14 pages, which by Washington standards is a pamphlet. But for some contained therein are the seeds of what TechDirt CEO Mike Masnick has already called a “blatant censorship law” that will not be able to pass an “even simple First Amendment sniff test.” Masnick, it should be noted, is not an attorney.
"The Combating Online Infringement and Counterfeits Act will give the Department of Justice an expedited process for cracking down on these rogue Web sites regardless of whether the Web site's owner is located inside or outside of the United States," according to a statement from Leahy, chairman of the Senate Judiciary Committee, and committee member Hatch.
Rogue websites are those defined as being “dedicated to infringing activities.” Needless to say, the definition of that phrase is the key component of the bill.
The bill states that a site is “dedicated to infringing activities” if it is subject to U.S. federal civil forfeiture laws and is “primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator” to offer, facilitate or enable goods or services in violation of copyright laws contained in Title 17 of the U.S. Code, “without the authorization of the copyright owner or otherwise by operation of law.”
Copies of works are included as well as public performances, by any means, including by means of “download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or internet resources for obtaining such copies for accessing such performances or displays.”
Once a site is deemed to be “dedicated to infringing activities,” the U.S. attorney general can commence an “in rem action against any domain name used by an internet site in the judicial district in which the domain name registrar or domain name registry is located.” The AG must first notify the registrant of the domain of the alleged violation and the “intent to proceed” with further action, and must also publish a notice of the action after it has been filed.
Information about registrants will be retrieved from the domain’s registrar or registry, and for purposes of the law the domain will be considered to reside in the location of its registry or registrar. For sites located offshore, the AG will serve court orders directly to the site’s registry or registrar, which will be required to act promptly.
“Upon receipt of such order,” reads the current text of the bill, “the domain name registrar or domain name registry shall suspend operation of, and lock, the domain name.”
The law as it currently is written also would provide complete immunity to any entity that receives a court order for actions taken “to comply with this section or arising from such an order.”
Compliance with court orders issued under the law would be enforced by the AG’s office, which can bring an action against any party “that willfully or persistently fails to comply with such an order.” The only defense in such a situation would be if the party does not have the “technical means” to comply.
Free speech and privacy activists are also concerned about a provision of the law that would allow the AG to keep a “public listing of domain names that, upon information and reasonable belief, the Department of Justice believes are dedicated to infringing activities but for which the Attorney General has not filed an action under this section.” Procedures will be established, however, for owners and operators of domains on the list to petition to be removed. A process for judicial review of a decision by the AG is included in the bill.
AVN has calls out seeking comment on the proposed legislation, and will provide them as they come in. In the meantime, the bill appears to be inspiring slippery-slope theorists across the board, some of whom are already commenting on the future implications if it passes, and what it would have meant for our world were it already the law.
“Though this bill makes it easier to pursue alleged international infringers than otherwise would be the case, it applies equally to domestic U.S. ones as well,” wrote Denise Howell on ZDNet today. “Thus, if this had been on the books when it could be more forcefully argued that YouTube had no ‘commercially significant purpose or use’ beyond distributing infringing works, Keyboard Cat might still be tickling the ivories in obscurity.”
The Combating Online Infringement and Counterfeits Act can be read here.
