Once Again, the Copyright/Trademark Tail Tries to Wag the Internet Dog

Congress is set to once again consider the Sen Leahy’s Combating Online Infringements and Counterfeit Act, a truly awful bill (with the appropriately awful acronym “COICA” — which sounds a little too much to my ears like “cloaca,” and if you don’t know what “cloaca” means, you can look it up here . . .). I have written a (relatively brief) “Law Professors’ Letter in Opposition,” which now has about 35 signatories, which you can read here. [There’s a summary of the bill’s provisions in the Letter – and the full text of the current version is posted here]

The bill would allow the Attorney General to institute an in rem action against the domain name of any Internet site “dedicated to infringing activities” — defined to include any site that “engages in” copyright or trademark-infringing activities where those activities, “taken together,” are “central to the activity” of the site. The court would then be authorized to issue injunctions — not against the offending website, but against “the domain name” itself — ordering the domain name registrar where the target site’s domain name was registered, and the domain name registry responsible for maintaining the authoritative database of names for the target site’s top-level domain, to “lock out” the domain name (and therefore prevent access to the site through use of the domain name). The court could also enjoin any of the thousands of Internet Service Providers, or any “operator of a nonauthoritative domain name server” (a category that includes virtually all ISPs or operators of networks linked to the Internet), ordering them to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.”

It’s awful on many fronts. It would allow a court to effectively shut down a site operated out of Brazil, or France, without any adversary hearing (unless, I suppose, “the domain name” itself comes into court to argue the case) or any reasoned determination that the site actually is engaged in unlawful activity. There is a name for that in our law: “prior restraint,” and we don’t like them — even in cases where truly compelling governmental interests are at stake, let alone where the purpose is merely to protect the rights of copyright and trademark owners.

And it’s awful because, as I wrote in the Letter:

Precisely because of its egregious Constitutional infirmities, the Act, if enacted into law, will not survive judicial scrutiny, and will, therefore, never be used to address the problem (online copyright and trademark infringement) that it is designed to address. Its significance, therefore, is entirely symbolic – and the symbolism it presents is ugly and insidious. For the first time, the United States would be requiring Internet Service Providers to block speech because of its content – a dramatic retreat from the US’s long-standing policy, implemented in §230 of the Communications Decency Act, §512 of the Copyright Act, and elsewhere, of allowing ISPs to focus on empowering communications by and among users free from the need to monitor, supervise, or play any other gatekeeping or policing role with respect to those communications. It is a policy that has not only helped make the United States the world leader in a wide range of Internet-related industries, but it has also enabled the Internet’s uniquely decentralized structure to serve as a global platform for innovation, speech, collaboration, civic engagement, and economic growth.

Even more significant and more troubling, the Act represents a retreat from the United States’ historical position as a bulwark and beacon against censorship and other threats to freedom of expression, freedom of thought, and the free exchange of information and ideas around the globe. At a time when dozens of foreign governments have dramatically stepped up their efforts to censor Internet communications in order to suppress legitimate dissent, to marginalize religious minorities, and to prevent citizens from obtaining information about the world outside their borders, the United States has always been a voice – often the only voice – opposing these efforts. Our ability to defend the principle of the single global Internet – the Internet where all of humanity has equal access to knowledge and ideas, the Internet that looks the same to, and allows free and unfettered communication between, users located in Shanghai and Seattle and Santiago, free of locally-imposed censorship regimes – will be deeply compromised by enactment of S. 3804, which enshrines in U.S. law for the first time the contrary principle: that all countries have a right to insist on the removal of content, wherever located, from the global Internet in service of the exigencies of local law. Nothing limits the application of this principle to copyright or trademark infringement, and nothing limits the application of this principle to actions by the United States; when all countries exercise this prerogative in support of their local legal regimes, as they surely will, we will have lost – or, more properly speaking, we will have destroyed – the single global inter-connected communications platform that we have built over the past several decades and that holds out so much promise for the improvement of human society across the globe.

PS – If you’re interested in signing on, please contact me directly with your name, title, and affiliation.