Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

Summary: Proposed new legislation would strip domain access from sites 'dedicated to infringing activities,' cutting through the red tape of due process, sovereignty, and property rights.

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TOPICS: Telcos
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Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPsRecently I've gotten a lot of mail from concerned people wondering whether the Obama administration has secreted an "Internet kill switch" into a pending cybersecurity bill.  As of yesterday, I can tell them:  right needle, wrong haystack.

While it's apparently debatable whether the U.S. government already has the ability to shut sites down, proponents of the just-introduced Combating Online Infringement and Counterfeits Act (PDF) don't want there to be any confusion on the point:  if this law is passed, it will.  Not in the name of national security, but instead to protect the economic interests of U.S. intellectual property owners.

To put things in context, it's no secret aggressive enforcement by U.S. rightsholders in the entertainment, software, and other industries has driven online traffic in infringing material offshore.  In May, the Congressional Anti-Piracy Caucus named China, Russia, Mexico, Canada and Spain -- home of some of the top file-sharing sites -- as its primary Axis of Evil, and of course Sweden, which houses the uber-resilient Pirate Bay, gets an honorable mention on any such list.  The legislation introduced yesterday is evidence of a lightbulb going off over someone's head on the enforcement side of this struggle:  though the U.S. lacks jurisdiction and control over far-flung Web hosts and ISPs, it has jurisdiction over the registries for the .com (VeriSign), .net (VeriSign), and .org (the Public Interest Registry) domains, and various other TLDs.  "Let's use it," the rightsholders have declared.

Under this proposed new law, in light of the dominance of U.S. firms in the domain registry arena, U.S. rightsholders would be able to effectively flip the kill switch on sites offering allegedly infringing material without having to rely on the cooperation of pesky foreign governments and courts.  Here's how Keith Kupferschmid, Senior Vice President for Intellectual Property Policy & Enforcement at SIIA, put it:

The legislation not only strengthens the DOJ’s ability to shut down individual domains; it also gives authorities the power to cut piracy off at the source by eliminating critical technical and financial resources. SIIA runs the industry’s most aggressive anti-piracy program, and we believe the legislation introduced today could greatly extend our reach and ability to thwart piracy – especially operations taking place on foreign websites.

Once the Justice Department concurred that a particular site was "dedicated to infringing activities," here's how it would work:

  • The U.S. Attorney General institutes an in rem action against the site in question.  In rem actions are actions directly against a property interest.  Here, the property is the target site's domain name.
  • If the domain's registry OR registrar is located within the U.S. (remember, that's all .coms, .nets, and .orgs), the action is to be brought in the local jurisdiction of the registrar or registry (e.g., VeriSign is headquartered in Dulles, VA).
  • If the domain's registry or registrar is not located within the U.S., the action may be brought in the District of Columbia.
  • Once the action is commenced, the Attorney General can apply for injunctive relief "against the domain name used by an Internet site dedicated to infringing activities, to cease and desist from undertaking any infringing activity...."  There's no need for a trial to get the injunction; it can be issued immediately if the court is satisfied with the A.G.'s showing.  And there's no call for a jury to be involved in granting the relief; injunctive relief is equitable in nature, and is dispensed by a judge only, no jury.
  • Once the injunction issues, it's game over for the target site.  If its registry or registrar is within the U.S., the order enjoining use of the domain by the site is simply served on that entity and -- POOF!  No more site.  The proposed law also anticipates that target sites will scramble for new identities, and makes it easy to expand the injunction to other domain names as needed.
  • If the registry and registrar are both outside the U.S. -- and since that excludes all .coms, .nets, and .orgs, for practical purposes these are much smaller fish -- the order may still be used to 1) block access to the site within the U.S. (by directing ISPs to decline to resolve the address), 2) prevent financial transactions providers from completing transactions for U.S. customers, and 3) prevent ad networks from serving ads to the site associated with the blocked domain.  These non-domain management-related providers have no incentive to challenge or object to the A.G.'s directives, as they are expressly immunized from liability associated with compliance.

I guess Cary Sherman wasn't kidding about the DMCA not being a big enough stick.  COICA, if passed, would be nothing short of General Sherman.

Not being a D.C. insider or much of a policy wonk myself, I honestly don't know what to think about the chances of this proposed legislation becoming law.  If it does, it may not remain one for long.  Favoring COICA's passage is the fact it is presented as a bipartisan initiative, and Washington seems pretty receptive these days to rightsholders' complaints that their enforcement efforts are hamstrung.  On the other hand, this bill is quite a land-grab, or domain-grab is more like it.  It makes some sweeping assumptions about the ability and authority of U.S. courts to interfere with international entities, gives scant due to due process, and tosses the longstanding "substantial noninfringing use" principles of Sony v. Universal out the window by specifying only "commercially significant" uses are relevant in determining whether a site is "dedicated to infringement."  (On that last point, legislatures can actually toss judicially-decreed wisdom out the window.  But still.)

COICA shows that when it comes to enforcement, U.S. intellectual property interests have plenty of bold, creative, and innovative ideas.  Though perhaps some of that initiative might be better directed at the business model side of things.

Update #1:  Another interesting little tidbit is the bill's requirement that the Attorney General maintain a public list of domain names "that, upon reasonable information and 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."  It's like a most wanted list for copyright suspects.  Again, with no trial.  How'd you like to try to get/keep investors or insurance under those circumstances?

Update #2:  Though this bill makes it easier to pursue alleged international infringers than otherwise would be the case, it applies equally to domestic U.S. ones as well.  Thus, if this had been on the books when it could be more forcefully argued that YouTube had no "commercially significant purpose or use" beyond distributing infringing works, Keyboard Cat might still be tickling the ivories in obscurity.

More on COICA:

Gautham Nagesh, Bipartisan bill would ramp up anti-piracy enforcement online

David Kravets, Bill Would Give Justice Department Power to Shutter Piracy Sites Worldwide

Greg Sandoval, Lawmakers want power to shut down 'pirate sites'

Digital Music News, This Is War, Baby: Combating Online Infringement Act Hits the Senate

Mike Masnick, US Senators Propose Bill To Censor Any Sites The Justice Depatement Declares 'Pirate' Sites, Worldwide

Wendy Seltzer, Copyright, Censorship, and Domain Name Blacklists at Home in the U.S.

Richard Esguerra, Censorship of the Internet Takes Center Stage in "Online Infringement" Bill

(Image by kthread, CC Attribution-2.0)

Topic: Telcos

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • RE: Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

    If this is passed, expect for there to be riots, because this gives way too much power to the government to shut down things just on an allegation of 'piracy'.

    It's time for these rights holders to realize that they have lost this battle FOREVER. China and other countries will just withdraw from Verisign and other things, and start their OWN internet authorities if this law is passed.
    Lerianis10
    • RE: Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

      @Lerianis10

      Oh, and on another point: no, legislatures cannot throw judicial wisdom out the window. The courts have the authority to say that this law violates the same things that they said it violated the last time, and throw this law out as well.
      Lerianis10
    • No they won't ...

      @Lerianis10 ... because the Chinese need U.S. companies to come to them for manufacturing capacity. The EU and Japan needs the U.S. Economy even worse. In a few years, as more and more chinese citizens become consumers, this may reverse itself but, for now, this might be the place to start. Hit the thieves in the pocketbook instead of putting kids and their parents behind the eight-ball for being the victims of websites which victimize them into taking part in infingement of intellectual property.
      M Wagner
    • RE: Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

      @Lerianis10 : Riots in the streets? Ya. By piraters and those who are anti-government [most of them are probably the same].

      They set up their own internet authority and i could see the US blocking anything from a country that sets up their own authority.

      Chinese registrars don't care anyways. Half of the spam there point you to Chines web sites anyways.
      Gis Bun
      • RE: Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

        @Gis Bun First off .... you are like the others that assume its only piraters that would *want* to riot.<br><br>I would, because there *are* sites that could be effected by this, simply because "someone said so".<br><br>Again, as was in the article, this law could have killed Youtube long ago, it wouldn't have just effected clips from shows by the original actors, but *could* be applied liberally to derivitive works ... ie. gather 5 people and pretend you're the simpsons, act out a scene, and you've infringed someone's work (writers, actors, show creator, etc).<br><br>This type of law punishes the innocent, not the guilty. Example: I bought my music CD of Peter Gabriel, but by use of this law, I would not be able to create MP3's of the music with Winamp, because Winamp would be blacklisted for creating a program that circumvents the artists' rights, the label's rights, etc ... even if my only intention is to make an MP3 that is *ONLY* for me (not shared, etc) I woudl be stopped in performing the task, because Winamp would be illegal, I couldn't get it legally from "winamp.com" because they'd block access to a program that allows, is conductive to, helpful with/for piracy.<br><br>The laws of these United States of America, need to be designed to punish the guilty, not harm the innocent, and be applicable to all ... and its our coddling idiots in congress that can't stick to the ideals and work to protect the innocent and that looses every US Citizen the rights declaired for us in the Constitution.
        TG2
  • I fully expect this law to pass, and then ...

    a couple of interesting things will happen.

    1. We will see a backlash from the EU and Asia, who will finally wake up to the fact that the US has far too much power over the "Worldwide Web".

    2. Countries like China who already exercise political control and censorship over the internet can show that the US is just like them and can make no moral denunciations of censorship on the internet.

    3. Innovation and new business on the internet will continue to move offshore at a faster pace. Domain names have lost much of their relevance with the advent of the search engine. I can't remember the last time I actually typed in a url. As long as search engines (onshore and offshore) continue to locate and serve up the link information, file sharers will beat the system.
    terry flores
    • RE: Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

      @terry flores Great points.
      Denise Howell
      • Not really, the owner of the blocked site ...

        @Denise Howell ... could appeal the injunction in U.S. courts. This brings them into the U.S. Courts, where they could get a fair trial and they could defend their actions. If they courts find that they are not infinging after all, the injunction would have to be lifted.
        M Wagner
    • RE: Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

      @terry flores
      Hell yes, this. IP addresses will be given out rather than domain names. This is so easy to get around it's laughable.

      It's also terribly unconstitutional, and hope to god it doesn't pass.
      Droid101
    • This proposed law is not about censorship ...

      @terry flores ... it is about theft of intellectual property. With censorship, the blocked site has no recourse, with an injunction the owner of the blocked site could seek relief in U.S. courts through a Jury trial. It is their choice. Those seeking a market for their stolen goods still need the U.S. economy.

      The EU and Asia need the U.S. economy (still the largest economy in the world). So do the Japanese (now third largest) and China (the second largest economy).
      M Wagner
      • You make several dubious assumptions

        @mwagner@... Blocking or deleting information for whatever purpose is censorship, whatever the motivation might be behind it. Political goals, protectionism, religion, all of them count. And any censor will tell you there is "recourse" to a decision, even if that recourse is absurdly complicated or impractical. The practical recourse for any US-hosted domain name is much simpler: just re-register outside of the US. <br><br>Most internet "piracy" is done by amateurs who make no profit from their efforts. Sites like Piratebay operate on a shoe-string, barely paying for monthly hosting costs. There are some websites that attempt to sell memberships, but by and large they are unsuccessful, beaten by the very activity they purport to profit from. Depending on which study you read, the two parties that appear to profit most from "piracy" are Time Warner Cable and Google, closely followed by Seagate. Always the main beneficiaries are the end-users, who are legion and generally without any assets to pursue.<br><br>Finally, it has no bearing "who needs who" because all of the economies are interlinked to a certain extent. The more important question is "who stands to lose the most?" If the international organizations start to ignore the US and set up their own internet governance, US companies cannot afford to be left out. They depend on the network and international providers to conduct critical business functions.<br><br>People often overlook the fact that, what the US can do by government action, so can other sovereign governments like Brazil, Russia, India, and China. China alone is poised to bring massive network and hosting resources online in the next five years, it could end up being the true "cloudhome" of the future. I've seen plans to bring up datacenters with a million virtual systems, on a par with anything that IBM, HP, Amazon or Google run in the US today. The only things that are stopping a wholesale migration to China are infrastructure costs (going down) and perceived government red-tape. If the US is seen as similarly bound by favoritism, it could lose it's last edge as the "heart of the internet".
        terry flores
    • More at stake than you realize

      It goes beyond your imagination you think this is really about file sharing? That is only the face of it.
      Altotus
  • What is not mentioned in this article ...

    ... is that the owner of the blocked site can turn around and appeal the injunction. In doing so, they can ask for a jury trial in a court under U.S. jurisdiction.

    In such an instance, the owner of the blocked site becomes the defendant and the DoJ becomes the plaintiff.

    This is a perfectly reasonable stance which goes after the "pirate for profit" and leaves alone those small fish which are not worth the trouble to prosecute for "casual piracy".

    This sounds fair enough to me - provided that the administration in power actually seeks the injunction through the courts instead of bypassing the courts on the grounds of national security.
    M Wagner
    • RE: Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

      @mwagner@... "There's a procedure for challenge and appeal" doesn't solve the bill's other problems: namely, that it purports to subject foreign parties to U.S. jurisdiction on the basis of what TLD they're using (not a traditionally sufficient basis for jurisdiction), and puts them in the undesirable position of having to try to undo an injunction that would not have been possible, but for this law.
      Denise Howell
    • So the US has the right..

      @mwagner@...

      to impose its will on the rest of the world? International law means nothing? Exactly which laws is the world going to abide by?

      Ah, silly me, US laws of course.

      Idiot. This is exactly the kind of absurd arrogance that makes the rest of the world despise the US.
      Economister
      • This is all about the American citizen

        No foreign access to the American mind he will believe what he is told! Do you understand? The World is nothing Truth is nothing this protects the lie. It is not silly this is in your backyard too.
        Altotus
    • Sell you freedom.

      Piracy for profit hmmm a new concept its done for nothing now, Make real money by allowing regulation and build a sneaker net like the drug business. It requires regulation to make money off piracy like it requires draconian drug laws to male money off natural substances like drugs a 100 billion tax on consumers to begin enforcement of a non enforcible idiocy. Government sells out big time protecting what is not broken. You do not know what misery you champion. Rich screws stomping on the week and powerless. No one listens to the voice from the wilderness crying out fools greed is a deadly sin you are being used, and you think you are doing something good? Something profitable? No its about information the control of it you do not understand you think this is good or profitable.
      Altotus
  • RE: Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

    I'm not American, but isn't there something in your Constitution, Bill of Rights, or something about innocent until proven guilty. This seems to be the exact opposite.

    This will probably backfire on them anyway because pirates can simply bypass DNS altogether and create a central (or de-centralized) off-shore registry for known pirate sites. Even for thousands of sites, the index could easily be distributed by P2P networks. Just add a dedicated search engine, the pirates get one stop shopping, your DOJ gets whackamole. What they don't seem to understand is that on P2P networks, the peers are not registered as TLD's anyway.

    What content owners should be concentrating on, is making content aquisition easier and more economical, and therefore more attractive. In other words, sell more for less. Most of the content that I like tends to be older, and is available at lower cost. For me, that makes it easier to both pay for what I want, and to get what I want without wasting a lot of time searching for content, and/or downloading junk. It's still easier to just rent a DVD from the corner store, than to search for it online.
    HooNoze
    • You just....

      @HooNoze

      make WAY too much sense on this topic. :-)
      Economister
    • There was a curious development in the war on drugs

      @HooNoze <br><br>US authorities started making wholesale use of their ability to seize ANY property using civil forfeiture procedures. They can do this without ever identifying the owner or charging anyone with a crime. Whoever wants the property back must file suit in court, pay their own legal expenses, and produce evidence that the property does belong to them and was not involved in any criminal activity. The cost for this procedure starts in the thousands and goes into the millions, takes a long time, and generally puts the burden on the private citizen. As a rule, police departments now seize any amounts of cash they find under any circumstances, secure in the knowledge that the owner (rightful or not) does not have the ability to get it back. This law would put "intellectual property" in the same boat.<br><br>Is it against the Constitution? Most scholars say "no" since the authorities are following "due process" even if that process is injust and corrupt. Civil rights experts point out that this behavior was one that our Founding Fathers rebelled against when it was carried out by the British, and "due process" should follow the same burden of proof for property as it does for persons. Maybe one day ...
      terry flores