COICA: A Potential Shift in Intellectual Property Law

By Natch Greyes

Tomorrow, September 30, 2010 the Senate Committee on the Judiciary will consider S.3804: Combating Online Infringement and Counterfeit Act (COICA). Senators Leahy (D-VT) and Hatch (R-UT), two Senators who typically work in tandem on intellectual property, are the main drivers of this bill, but COICA has garnered support from everywhere along the political spectrum, Senators Schumer (D-NY) and Coburn (R-OK), for instance, are both co-sponsors.

Essentially, COICA modifies existing U.S. intellectual property law to allow the Attorney General to bring in rem actions against any domain name used by a website “dedicated to infringing activities” and secure injunctive relief to force companies which have relationships with that domain name to cease their relationship. This has, unsurprisingly, resulted in a firestorm of commentary online. The Electronic Frontier Foundation (EFF), which is vehemently opposed to the bill, and its allies have lined up against the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and their allies.

The real problem, as outlined in a letter (.pdf) to the Senate Committee on the Judiciary by the American Association of Law Libraries (AALL) and allies, is the broad scope of COICA. COICA both creates a public blacklist of offending websites, essentially blocking access to certain websites via some unspecified mechanism, and expands the reach of United States intellectual property law to, potentially, encompass the entire world. The creation of a public blacklist is problematic in that it would seem to override existing precedent regarding the provisions of the Digital Millennium Copyright Act (.pdf overview) which immunize Internet Service Providers (ISPs) from copyright infringement liability with regard to allowing access to websites which are “dedicated to infringing activities.” Further, the assignment of such actions to the category of in rem alters the current dynamic, allowing the Attorney General to take action against domain names held in foreign countries by foreign nationals and hosted by foreign companies in the U.S. court system under U.S. law and enforce judgments against those foreign entities in a massive expansion of U.S. jurisdictional power. While the U.S. government certainly has an interest in preventing harm from coming to its citizens, i.e. copyright holders, how the U.S. can justify reaching out an physically taking down foreign websites, rather than simply blocking them, viz China, is unknown.

Some proposed changes to COICA have been already circulated. Although the full nature and extent of the changes is currently unknown, provisions allowing the Attorney General to obtain injunctions to limit access to domain names used by websites “dedicated to infringing activities” are not under discussion. Tomorrow morning, as the rain pelts down on the capitol expect to hear the claxon call of “Censorship” to echo through the lobby of the Dirksen Senate Office Building in anticipation of the Committee’s vote on COICA.

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