A proposed law allowing the government to pull the plug on Web sites accused of aiding piracy received a sizable political boost yesterday.
Dozens of the largest content companies, including video game maker Activision, media firms NBC Universal and Viacom, and the Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) endorsed the bill in a letter to the U.S. Senate. So did Major League Baseball and the U.S. Chamber of Commerce.
The letter to Sen. Patrick Leahy, a Vermont Democrat and co-sponsor of the bill, said new laws are needed to curb access to increasingly sophisticated "rogue Web sites" that "undermine the growth and stability of many industries and the American jobs that they support." The legislation should be enacted "during the time remaining" this year, meaning after the Democratic-controlled Congress returns in November, the letter says.
The proposal is not uncontroversial: Since its introduction a few weeks ago, the idea has alarmed engineers and civil liberties groups, who say that it could balkanize the Internet, jeopardize free speech rights, and endanger even some legitimate Web pages that are part of larger sites. According to its current wording, any domain name "dedicated to infringing activities" could find itself in the U.S. Department of Justice's prosecutorial crosshairs.
"We feel that this bill addresses the worst of the worst," MPAA VP Howard Gantman told CNET yesterday. "It's focused on Web sites that are engaged in promoting illegal activity and there needs to be something done about it."
The bill, known as COICA for Combating Online Infringement and Counterfeits Act, doesn't authorize the Feds to shut down allegedly infringing sites directly. Rather, the Justice Department would seize the Web site's domain name and require any credit card or bank with U.S. operations to cease doing business with the accused pirate.
Someone who knows the Internet Protocol address--the IP address for cnet.com, for instance, is currently 126.96.36.199--would still be able to connect to the Web site even if the computer that normally translates a domain name into its numeric address pretends not to know it.
If all copyright-infringing and trademark Web sites were hosted in the United States with their Webmasters living on U.S. soil, Leahy's COICA would be largely unnecessary. A straightforward copyright lawsuit of the sort that the RIAA and the software industry have spent years perfecting would suffice.
But that's not the case. Sites like the Russia-hosted MP3Sparks.com are accessible around the world, even though they almost certainly violate U.S. copyright law. ThePirateBay.org in Sweden has not only survived what seem like innumerable attempts to shut it down, but its operators take special pains to mock copyright lawyers who write cease-and-desist letters meant to be both earnest and threatening.
A Web site is in danger of having its domain seized (or having U.S. Internet providers encounter a sudden case of amnesia when their customers try to visit it) if it is "primarily designed" and "has no demonstrable, commercially significant purpose or use other than" offering or providing access to unauthorized copies of copyrighted works. Counterfeit trademarks--that's why Chanel, Nike, Tiffany, and LVMH Moet Hennessy Louis Vuitton also signed the letter--are also included.
That wording is significant. Because the phrase "providing access" appears, that would sweep in speciality search engines including The Pirate Bay that provide links to copyrighted works, even if the actual BitTorrent streams are hosted elsewhere.
If the Leahy bill, co-sponsored by Orrin Hatch (R-Utah), becomes law, domain name registries such as Verisign, which owns the rights to .com, .net, .tv, .cc, and others would find themselves under new and uncomfortable legal pressure. The .org registry has been run by the Public Interest Registry since 2003.
But registries for top-level domains in other countries would remain unaffected, and The Pirate Bay, perhaps as a precautionary measure, already owns thepiratebay.se. Americans interested in free (if illegal) downloads could simply switch to that or visit the IP address at http://188.8.131.52, a workaround indicating that this congressional effort might accomplish rather less than its backers would like.
For civil liberties groups, the bigger problem is that curbing access to a Web site because of some infringing material raises First Amendment problems. The Center for Democracy and Technology has published a six-page analysis (PDF) saying the bill would "set dangerous precedents with serious consequences for free expression, global Internet freedom, and the Internet's open and global architecture." Internet engineers have raised separate concerns.
To content producers, and their allies among large trademark holders, there's no time to spare. The U.S. and other countries in the World Trade Organization already have "agreed in a binding international instrument to take action against counterfeiting and piracy on a commercial scale," the letter says. "This legislation simply advances that goal, and should in no way be used by other countries as a pretext to support censorship that takes place outside agreed upon principles of international law."
They're pressing for a vote before the new Congress convenes in early 2011, perhaps because of concern that the election could tilt one or both chambers toward Republican control and make enactment of COICA less likely. One possible vehicle is an appropriations bill to fund the federal government for the next 10 months; that debate will resume under Democratic leadership by the time a temporary funding measure expires on December 3.
Over the years, this approach has been a favorite way for Congress to enact laws that might not have otherwise have survived strict legislative scrutiny. The Real ID Act, a domain name tax, a school-and-library filtering requirement, and an anti-Internet porn measure were all enacted as part of unrelated government spending bills, usually at the end of the calendar year.
So why the rush? Republicans may be--it's a little hard to predict--more skeptical about the need for COICA, even if it has been endorsed by the U.S. Chamber of Commerce. Remember, President Bush threatened to veto an MPAA- and RIAA-backed bill that would let federal prosecutors file civil lawsuits against peer-to-peer pirates.
Contrast that with President Obama's choice of RIAA lawyers for senior posts. And Vice President Joe Biden recently put content industry hearts a-flutter when proclaiming: "Piracy is theft. Clean and simple. It's smash and grab." The MPAA couldn't have put it any better itself.