COICA 'Online Infringement' Bill Set for Markup Hearing Thursday

WASHINGTON, D.C.—Introduced by Senator Patrick Leahy (D-VT) in late September, the Combating Online Infringement and Counterfeits Act (COICA, S. 3804) is scheduled for a markup hearing by the Senate Judiciary Committee tomorrow, Nov. 18, during which Leahy is expected to propose an amendment to the legislation that is intended to allay concerns of free speech and consumer groups vehemently opposed to the bill.

COICA is intended to deal a fatal blow to websites dedicated to infringing activity, which is defined as sites that have “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” access other people’s copyrighted material, whether to rent, purchase or simply view the infringed content. If such activities are “central to the activity of the internet site or sites accessed through a specific domain name,” they fall under the scope of this legislation, even if the website is not located in the United States.

The law, if passed, would allow the Attorney General of the United States to bring an in rem (i.e., directed toward property) action that seeks injunctive relief against an infringing domain name in U.S. District Court. If an injunction is granted by the judge, the registrar of the offending site would be required to “suspend operation of, and lock, the domain name.” Note that the law only addresses the actual domain name of an offending website, and not the site’s IP address, a distinction that is not lost on critics of law who say that this provision at least can be easily circumvented by those determined to access the website.

In addition to registrars and ISPs, however, the attorney general also can serve court orders on a financial service provider, requiring it to “prevent its service from processing transactions for customers located within the United States based on purchases associated with the domain name” and “its trademarks from being authorized for use on internet sites associated with such domain name.“ This curtailment of the ability to transact would be much more difficult to circumvent.

Ad networks also are targeted for receipt of court orders. If served, “a service that serves contextual or display advertisements to internet sites shall take reasonable measures, as expeditiously as practical, to prevent its network from serving advertisements to an internet site accessed through such domain name.” This restriction is obviously meant to prevent a targeted website from generating revenue.

The AG is also provided with teeth to enforce the court orders. If an entity subject to such an order does not comply, the AG can bring an action against them, with the goal of compelling compliance with the law.

The bill also directs the AG to maintain “a public listing of domain names that, upon information and reasonable belief, the Department of Justice determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section.”

Though seemingly devoid of due process, the law does provide an element of judicial review. “After the Attorney General makes a final determination on a petition to remove a domain name appearing on the list established under paragraph (1) filed by an individual pursuant to the procedures referred to in paragraph (3), the individual may obtain judicial review of such determination in a civil action commenced not later than 90 days after notice of such decision, or such further time as the Attorney General may allow.” 

The jurisdiction for such review is the United States. “A civil action for such judicial review shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has a principal place of business, or, if the plaintiff does not reside or have a principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia.”

According to The Volokh Conspiracy’s David Post, the bill is “awful on many fronts. It would allow a court to effectively shut down a site operated out of Brazil, or France, without any adversary hearing (unless, I suppose, “the domain name” itself comes into court to argue the case) or any reasoned determination that the site actually is engaged in unlawful activity. There is a name for that in our law: “prior restraint,” and we don’t like them—even in cases where truly compelling governmental interests are at stake, let alone where the purpose is merely to protect the rights of copyright and trademark owners.”

Post argues, however, that the bill’s many “egregious Constitutional infirmities” make it a certainty that it will not survive judicial scrutiny.

“Its significance, therefore, is entirely symbolic,” he continues, “and the symbolism it presents is ugly and insidious. For the first time, the United States would be requiring Internet Service Providers to block speech because of its content—a dramatic retreat from the US’s long-standing policy, implemented in §230 of the Communications Decency Act, §512 of the Copyright Act, and elsewhere, of allowing ISPs to focus on empowering communications by and among users free from the need to monitor, supervise, or play any other gate keeping or policing role with respect to those communications.”

Needless to say, a cabal of powerful groups—including the Motion Picture Association of America, the U.S. Chamber of Commerce, the Screen Actors Guild, Viacom, and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States—support the bill. The fact that both producers and entertainment industry trade unions are aligned in favor of it is an indication of how seriously these normally antagonistic groups take the issue of piracy on the internet, and the extent to which they would like to see the internet itself become a broadcast medium.

In a letter to Sen. Leahy sent in September, the U.S. Chamber of Commerce argued, "While many of these rogue sites strive to conceal their true nature and thus may appear legitimate to consumers, they are devoted almost exclusively to offering or enabling unauthorized downloads or streaming of copyrighted material—including the latest movies and music hits—or to trafficking in counterfeit products, from pharmaceuticals to luxury goods. The Chamber believes that effectively addressing the proliferation of these sites is necessary to protect jobs in key industries and consumers from unsafe products and services, and to facilitate the continued growth of the vibrant, legitimate internet marketplace."

Groups opposed to the bill include the Center for Democracy & Technology, the Electronic Frontier Foundation, and the Distributed Computing Industry Association.

During the markup hearing, Senator Leahy is expected to offer an amendment that will:

• Strike provisions that would have authorized the Justice Department to publish a listing of domain names that provided access to websites dedicated to infringing activities, but against which it did not to seek a court order under the Act, in response to concerns from Internet service providers (ISPs), online companies, and public interest groups.

• Ease the burden on ISPs and payment processors that are required to take action pursuant to this Act. The amendment specifies that an ISP shall not be required to modify its network or facilities to comply with an order or take steps with respect to domain name lookups performed by others. In addition, the amendment requires only that ISPs and payment processors act as expeditiously as reasonable.

• Provide more explicit protection from legal liability for any third-party registrar, registry, ISP, payment processor or advertising network that takes action pursuant to this Act.

• Require the Attorney General to develop a process in consultation with other law enforcement agencies to coordinate related investigations.

S. 3804 can be read here.