Online IP Protection Bill Sparks Outrage
By Jaikumar Vijayan, Computerworld
Sep 29, 2010 1:55 pm
Proposed federal legislation that would require domain registrars, Internet Service Providers and others to block access to Web sites that the U.S. contends contribute to copyright infringement has generated outrage among privacy advocates and prominent industry personalities.
Proponents of the legislation argue that passing the bill would be a vital move toward protecting U.S. jobs and innovation.
The bill, called the Combating Online Infringement and Counterfeits Act (COICA), was introduced last week by U.S. Sens. Patrick Leahy (D-Vt) and Orrin Hatch (R-Utah).
The proposed law would allow the U.S. Department of Justice to file a civil, in rem action seeking a preliminary court order against any Web site that it determines is peddling copyrighted material and counterfeit goods. In rem civil actions are filed against property, such as physical property or Web sites, rather than against individuals.
All U.S. based domain registrars, ISPs and other operators of a domain name system server will then be required to prevent access to the domain name that has been served with such a court order.
The law also would allow the Attorney General to compile a separate list of Web sites that the DOJ "determines are dedicated to infringing activities" but for which no court order has been sought.
Service providers, domain registrars and others will not be required to block access to such sites. However, any provider that does block access would have full immunity from any legal action under the bill.
The proposed legislation is aimed at addressing the nearly $100 billion in intellectual property theft that occurs annually via online sites, Sen. Leahy's office said in a statement. The products offered illegally through such Web sites include new movie and music releases, as well as counterfeit pharmaceutical and consumer products.
A vast majority of the sites selling such products are based outside the U.S and are therefore outside the reach of U.S. law. The COICA bill will give the DOJ new tools to go after such Web sites in an expedited fashion, Senator Leahy's said in the statement.
Privacy advocates and others see the proposed bill as ambiguously worded and likely to result in Internet censorship.
Richard Esquerra, an activist with the Electronic Frontier Foundation said that the bill would lead to the creation of overly broad procedures that could impact a wide number of law-abiding sites and result in two government-created Internet blacklists.
Privacy advocates said that one very worrisome result of the legislation would be the government listing of domain names that the DOJ, without judicial review, determines is breaking the law. In addition, they noted that the U.S. would also list all of the domains served with a court order, which domain registrars and others would be required to block.
Though online service providers are not required to block access to sites on the blacklists, they would likely face pressure from "all kinds of entities," Esquerra said.
Unlike the current Digital Millennium Copyright Act (DCMA), which lets copyright holders ask for infringing content to be removed from other sites, the new bill would allow the DOJ to shut down access to an entire domain, which could block access to non-infringing content, he said.
"What they have done is create an Internet censorship bill," that will do little to curb online copyright infringement, Esquerra added.
Aaron Swartz, executive director of Demand Progress, a rights advocacy group that has launched an online campaign protesting the legislation, said the lack of due process in the bill is troublesome.
He said that the proposed legislation would allow the DOJ to bypass current statutes that require court orders to shut down Web sites. And, he noted that while the law would block U.S. users from accessing affected sites, it wold do nothing to prevent users outside the country from access to the sites.
"This kind of Internet censorship is exactly the sort of thing the US government has been criticizing China and Iran for," Swartz said.
"I don't think it makes sense for the U.S. to use a censorship regimen," to deal with IP protection issues, Swartz said. "Anytime you use a censorship regime, there is a temptation to use it for more and more [unrelated objectives]."
According to Swartz, more than 50,000 people have so far signed the Demand Progress online petition. The groups action has also prompted some 1,500 telephone calls to Senators expressing opposition.
In an open letter to the Senate Judiciary Committee which is scheduled to hear the bill on Wednesday close to 90 Internet heavyweights blasted the bill. Signers of the open letter include David Reed a developer of the TCP/IP protocol, Paul Vixie author of the BIND protocol and Steve Bellovin, one of the creators of USENET.
A spokesman from Leahy's office Tuesday e-mailed to Computerworld a document playing down the concerns expressed. According to the document, the bill targets only the "worst offenders" and only with court approval. The DOJ would have to demonstrate to a federal court that the Web site's content "satisfies the existing threshold for civil forfeiture, or has a central purpose related to [infringement]."
The spokesman's e-mail also contained a comment from Leahy that welcoming input from everyone on the best way to attack the problem. "But ignoring the problem, or saying it is too complicated, can no longer be an option," Leahy said.
Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan , or subscribe to Jaikumar's RSS feed .
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