Copyhype

This past week, the Senate Judiciary Committee unanimously approved the Combating Online Infringement and Counterfeits Act (COICA, S.3804). The bill is targeted toward websites whose central activity is dedicated to infringement. It allows for seizure of the domain names of such sites when they are located in the US, and it requires service providers, advertising providers, and financial transaction providers to take reasonable measures to prevent their services from being used by such sites located outside the US.

COICA was introduced by Senator Patrick Leahy and cosponsored by seven Republican and eleven Democratic senators. Along with the unanimous approval by the Judiciary Committee, the bill has wide support among labor unions, business and trade organizations, and companies.

But as with any effort to promote the progress of the useful arts and sciences, the Judiciary Committee’s approval has set off a fresh round of cries that the “sky is falling” on free speech, internet freedom, and due process. Those who believe that copyright should benefit everyone except those who actually create the stuff that enriches our lives are ramping up their rhetoric of “blacklists” and “censorship.”

I wrote previously about COICA. Since it is moving closer to becoming law, I thought it merited some more attention to clear up some of the misunderstandings surrounding the bill. Specifically, I wanted to take a closer look at why COICA is needed and what it does.

Why COICA is Needed

The last bit of US legislation to substantively address online infringement was the Digital Millennium Copyright Act (DMCA), which was passed twelve years ago. The web was still in its infancy — Google was a month old when the bill passed. Since then, content industries have struggled to find ways to reduce internet piracy. The recording industry at first targeted intermediaries such as Napster and Grokster, moving next to its much-publicized lawsuits against individual filesharers, a campaign that ended nearly two years ago. More effective methods are needed.

Comic book artist and writer Colleen Doran provides a first-hand account of the effects online piracy has had on small creators and why legislation like COICA is needed. In The ‘Real’ Victims of Online Piracy, published in The Hill’s Congress Blog last Wednesday, she writes:

I spent the last two years working on a graphic novel called Gone to Amerikay, written by Derek McCulloch for DC Comics/Vertigo. It will have taken me 3,000 hours to draw it and months of research. Others have contributed long hours, hard work and creativity to this process. But due to shrinking financing caused by falling sales in the division, these people are no longer employed.

The minute this book is available, someone will take one copy and within 24 hours, that book will be available for free to anyone around the world who wants to read it. 3,000 hours of my life down the rabbit hole, with the frightening possibility that without a solid return on this investment, there will be no more major investments in future work.

[…]

Everyone gets paid – manufacturers of computers, iPads, electricity, bandwidth – everyone except the creators of content.

It costs big bucks to finance these pirate sites. Major advertisers and open source ad providers like Google pay them.

Congress is moving on a bill that promises to cut funding for pirates, and the usual suspects who have become accustomed to getting whatever they want online without paying for it are crying foul.

Both Bob Pisano, president of the MPAA, and the Global Intellectual Property Center have also recently written about the detriment of online piracy to creators and consumers and how COICA helps address the difficulties and challenges of enforcing copyright online.

Others have noted the specific need for encouraging advertising providers to block their services from rogue pirate sites, sites that often rely primarily on ad revenue for their profits. As Patrick Ross points out, advertising providers may be reluctant to block such sites since it would mean giving up market share or subject them to liability. COICA solves these problems by clearly identifying sites with primarily illegal purpose and extending legal immunity to service providers who take reasonable and technically feasible measures to block service to those sites.

The idea for a bill like COICA has been percolating for some time now. The Information Technology & Innovation Foundation identified a need for the types of policies enshrined in COICA in December 2009 in its report Steal These Policies: Strategies for Reducing Digital Piracy. From the executive summary:

Other approaches, however, such as blocking websites, may require governmental approval before industry can act. Toward this end, there is a need for a process by which the federal government, with the help of third parties, identifies websites and organizations around the world that are materially engaged in piracy so that ISPs and search engines can block them, advertising networks and other companies can refuse to place ads with them, and banks and credit card companies can refuse to process payments to them.

What COICA Does

The Combating Online Infringement and Counterfeits Act targets the worst of the worst infringing sites — what have been called “rogue websites.” These sites offer little except access to first-run movies, entire television series, or album after album of music. The bill refers to these sites as “dedicated to infringing activities.” “Infringing activities” includes:

offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, 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 performance or displays.

A site is “dedicated” to such activities if, “when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.”

COICA would provide the US Attorney General with the authority to commence in rem proceedings against the domain name of a web site that is dedicated to infringing activities. Most civil litigation involves someone suing someone else — an in personam proceeding. A proceeding in rem, by contrast, is against specific property — often represented in court by the owner of the property as a third-party claimant. Aside from the difference in who’s suing whom, in rem and in personam proceedings are, by and large, the same: they are commenced in the same courts, subject to the same rules of evidence and rules of civil procedure, and end up in trial if not resolved before then.

Along with federal court rules and constitutional limitations that apply to all in rem proceedings, domain name forfeiture proceedings under COICA are governed by Title 18, §983 of the US Code, General Rules for Civil Forfeiture Proceedings. These provide, among other things, that the government has the burden of establishing by a preponderance of the evidence that the property is indeed subject to forfeiture — that is, the Attorney General has to prove to the judge that the web site is “dedicated to infringing activities.” They also explicitly provide for an “innocent owner” defense where the owner of the property had no knowledge that it was used for illegal purposes.

Upon commencement of the in rem proceeding, the court may issue a temporary restraining order, preliminary injunction, or permanent injunction against the domain name. These types of court orders are governed by existing law. To get a preliminary injunction, for example, the Attorney General “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” ¹Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008).

Any order granted against a domestic domain is then served on the domain name registrar or registry, which is required to suspend operation and lock the domain name. Orders granted against non-domestic domains are to be served on service providers, financial transaction providers, and online advertising providers. Those providers are then required to take reasonable measures to prevent their own services from being used by the web site associated with the domain name.

In my previous post on COICA, I mentioned some of the advantages such a proceeding has over other methods of enforcing copyright in the online realm. I also mentioned how COICA is not really a significant departure from existing law. It is more an optimization of existing law to address some of the most difficult challenges of online piracy.

Asset forfeiture has played an important role in law enforcement for centuries. Today, in the US, asset forfeiture is typically available either as part of sentencing for a criminal defendant or separately through an administrative or civil in rem proceeding. Civil forfeiture authority, however, is not inherent; it must be provided through legislation. ²LII Backgrounder on Forfeiture.

Forfeiture of infringing materials and property used to commit or facilitate the commission of copyright infringement is already provided for by law. This past summer, US authorities carried out Operation in Our Sites, an initiative that, among other things, resulted in the seizure of seven domain names for websites engaged in online piracy.

COICA is not the first law to expressly allow for civil forfeiture of domain names via in rem proceedings: the Anticybersquatting Consumer Protection Act (ACPA, 1999) provides for them as well. Provisions in COICA involving situs and venue mirror those found in ACPA.

Financial service providers and online advertising providers who provide services to sites dedicated to infringing activities already exists in the law. Last month, luxury goods manufacturer Gucci got a permanent injunction against two financial service providers that provided services to websites selling counterfeit goods. Not long after that, on October 29th, Warner Bros. and Disney won damages and an injunction against Triton Media, a company responsible for placing advertising on sites dedicated to copyright infringement.

Essentially, COICA sets forth an expressly defined procedure for reducing online piracy through civil forfeiture of domain names, as opposed to an ad hoc approach that could be cobbled together under existing law. In addition, it establishes clear safeguards to ensure the process is effective and legally sufficient. It gives clear guidelines to third-party operators like financial transaction providers and advertising providers so that they are assured of knowing what is expected of them as legitimate businesses while also providing immunity from liability resulting in technically feasible and reasonable measures to block sites operating outside of the law.

Later this week, I’ll take a closer look at some of the criticisms and concerns that have been raised over COICA.