Proposed anti-piracy legislation is currently making its way through Congress and causing quite a stir online. Called the Combating Online Infringement and Counterfeits Act (COICA), the bill, like nearly every proposed IP legislation in the last decade, will, according to its opponents, surely result in a 1984-style government where all of our rights are harshly crushed by a freedom-hating police state. It has been described as “fundamentally a censorship bill” by the president of the Computer and Communications Industry Association. It “will risk fragmenting the Internet’s global domain name system,” according to a group of 80 internet engineers, and “create an environment of tremendous fear and uncertainty for technological innovation.”1 HuffPo warns it “would be a tremendous blow to free speech on the Internet.” The EFF agrees: “This is a censorship bill that runs roughshod over freedom of speech on the Internet” and “is designed to undermine basic Internet infrastructure.”
Maybe I’m not cynical enough to accept these apocalyptic predictions at face value. Maybe I don’t think the government is hellbent on shredding the Constitution at any opportunity it gets. And maybe, just maybe, I don’t think the creators who devote their lives to entertaining, enlightening, and enriching us, the millions of technical and administrative workers who help them, and the businesses that aid in disseminating their works around the world are ready to destroy the Internet to get a couple more bucks.
Let’s take a closer look at this bill and see if we can’t separate the rhetoric from the reality.
The Combating Online Infringements and Counterfeits Act was introduced in the Senate on September 20, 2010, by Patrick Leahy, along with six Republican and nine Democratic cosponsers. The bill was subsequently amended, but debate was postponed until after Congress’s current recess.
Supporters of the bill include the US Chamber of Commerce, IATSE, Screen Actors Guild, Directors Guild of America, American Federation of Television and Radio Artists, Viacom, and the Motion Picture Association of America. This past week, Jeff Price, Founder and CEO of TuneCore – a service dedicated to providing digital distribution to independent artists – publicly added his support to COICA.
COICA, as its name suggests, addresses the challenge of managing widespread piracy online. It creates a streamlined procedure for in rem actions against the domain names of sites “dedicated to infringing activities.” When first introduced, the bill provided for the creation of a list of infringing sites by the Attorney General; that provision has been removed from the most recent amended version.
I’m hardly a computer expert, so what follows is the first-grade version of domain names. Domain names are those website addresses we’re all familiar with: www.facebook.com, www.youtube.com, www.copyhype.com, etc. – what you type into your browser to get to a particular site. Every computer that connects to the Internet is given a numerical IP address. Domain names make it easier to connect to the site you want without having to know the specific IP address of the server or computer that the site is hosted on at the moment. This is made possible by domain name registries, which keep a database of domain names and their corresponding IP addresses.
Remove the domain name from the registry and anyone who tries to go to the site gets an error message, or something that looks like this:
As the illustration above indicates, domain names are treated as any other property that can be seized and forfeited as a matter of law. Asset forfeiture is an important tool in law enforcement. A bank robber can, as part of his sentence, be required to hand over his loot. This type of forfeiture can be referred to as an in personam order – the order to forfeit the assets is a result of a case against a specific person. Less familiar, but perhaps equally as important, is civil forfeiture.
In a civil forfeiture case, the objectives are the same: to recover the proceeds of the crime and the property used to facilitate it; but the procedure is different. Instead of bringing an action against a person (in personam) as part of a criminal case, the action is brought against the property (in rem). In other words, it is a civil case in which the Government is the plaintiff, the property is the defendant, and the persons objecting to the forfeiture are intervenors called “claimants.” This is why civil forfeiture cases — in the United States at least — have such unusual names, such as United States v. $160,000 in U.S. Currency, or United States v. Contents of Account Number 12345 at XYZ Bank Held in the Name of Jones.2
Civil forfeiture against domain names makes sense in addressing online piracy. In many cases, the owner of the domain may be unclear due to the ease of falsifying registration information, or the owner may be difficult to find. Criminal prosecution against the site owners may not be in the interests of justice. And often, these sites are nothing more than their domain name and a collection of links – quick to setup and easy to operate. Traditional criminal prosecution is too costly and ineffective against this widespread digital piracy.
Old Dog, New Tricks
The most ironic part of the complaints that this bill will censor or break the Internet is that in rem procedures against domain names are nothing new. The image above shows one example of a domain name being removed. The in rem action this bill describes is not something the DoJ could not do before. All this bill does is streamline the process. It specifies how to determine issues like the situs of a domain name, the proper jurisdiction for bringing these actions, and appropriate venue – issues that have largely developed through case law.3
Contrary to fears that this bill will result in the takedown of YouTube4 or any number of other sites,5 COICA is aimed only at the most egregious pirate websites, like the ones taken down during this past summer’s anti-piracy initiative Operation In Our Sites – sites which were replaced with the graphic shown above. Fears that the MPAA or RIAA could muscle the DoJ into expanding the definition of sites “dedicated to infringing activity” past the plain meaning of the statute’s text are unfounded; one need only look at the history of criminal copyright prosecution to see there is no evidence that this bill would be used against anything other than the most clearly infringing sites.
In short, the ease and scale of online piracy requires more effective legal tools to manage. The rhetoric against COICA is overblown; the reality is that it offers improvements on one such tool that may better protect the rights of creators.