WASHINGTON, October 12, 2010 - The Intellectual Property Breakfast Club on Tuesday, focusing on "Finding Solutions to the Problems of Copyright Infringement," may well focus on S. 3804, the “Combating Online Infringement and Counterfeits Act” (COICA), introduced late last month by Senate Judiciary Committee Chairman Patrick Leahy and Sen. Orrin Hatch, R-Utah.
The legislation would enable the Justice Department to seek a preliminary injunction against domain name registrars, which would have to suspend access to the domains hosting infringing material, or that are trafficking in infringing material. The legislation would require the attorney general to notify the federal intellectual property enforcement co-coordinator of the injunctions, and the coordinator would in turn be required to post the names of the suspended sites on a public web site.
One of the landmark aspects of the legislation is that it would give Justice the authority to order the shuttering of web sites hosted beyond U.S. borders, but which are using U.S.-based registrars.
This piece of legislation is the latest stab by federal authorities in the United States to address the phenomena of online piracy and counterfeiting. US officials have been locked in negotiations for the past several years with their counterparts in Europe, Africa, Asia and Australasia over the question of how best to combat online piracy and the international trafficking of counterfeit goods.
Hearings have not yet been held on the proposed legislation. Late last month, technology industry players began to voice concerns with the bill. In a letter signed by the Consumer Electronics Association, the Computer and Communications Industry Association, public interest groups like the Electronic Frontier Foundation and Public Knowledge, and research libraries, these groups write (PDF):
The potential for blacklisting for “facilitating” infringement, as so broadly defined in this bill,can undermine U.S. secondary liability law as established in Sony v. Universal, and ignores theculpable intent requirement of MGM v. Grokster. For example, would the listing of a website onthe blacklist constitute constructive knowledge for contributory infringement purposes, if aservice provider did not discontinue providing service to a website after it was listed? Moregenerally, the new definitions and requirements also raise serious questions about the effect ofthis bill on existing copyright exceptions, limitations and defenses upon which a significant sector of the U.S. economy relies.
But supports of COICA -- a long list of entities including the Association of American Publishers, the Business Software Alliance, the Copyright Alliance, the Entertainment Software Association, the Motion Picture Association of America, the Recording Industry Association of America, the Software and Information Industry Association and the U.S. Chamber of Commerce -- disagree.
According the letter from the American Federation of Television and Radio Artists (AFTRA), Directors Guild of America (DGA), Screen Actors Guilde and others (PDF):
This legislation will make it easier to shut down “rogue” websites, which are dedicated to stealing the films, television programs and music created by our members.
Also, the MPAA said:
These sites, whose content is hosted and whose operators are located throughout the world, take many forms. But they have in common the simple fact that they all materially contribute to, facilitate and/or induce the illegal distribution of copyrighted works, such as movies and television programs. These sites are increasingly sophisticated and take on many of the attributes of legitimate content delivery sites, often deceiving consumers into believing they are legitimate. They use credit card companies to facilitate payments, include advertising to earn money and provide so-called reward programs for frequent purchasers.
As reported in BroadbandBreakfast.com by Sarah Stirland, domain name seizures is a tactic being utilized in the fight against online piracy by both the United States and China. S. 3048 itself appears to model itself on the U.S. Customs Department's successful take-down this June of nine pirate web sites.
Supporters of the legislation say that the legislation is necessary to avoid re-instatement of a web site that has the same basic name as, or is only trivially different from, a web site whose domain name has been seized by customs officials.
Editor's Note: The preceeding story has been modified to include links and quotations from letters by supporters of COICA, and an explanation from supporters about the need for the legislation.
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