Congress Should Amend COICA, Think Tank Argues

Congress Should Amend COICA, Think Tank Argues

Copyright Bill's Current Provisions Raise Constitutional Concerns
November 19, 2010

Washington, D.C., November 19, 2010 -- Yesterday, the U.S. Senate Judiciary Committee unanimously voted to approve the "Combating Online Infringements and Counterfeits Act" (COICA). The bill would allow the U.S. Attorney General to obtain a court order disabling web domains deemed to be “dedicated to infringing activities.”

Intellectual property scholars at the Competitive Enterprise Institute praised the bill in principle but warned that the legislation's current provisions threaten free speech and lack crucial safeguards to protect against the unwarranted suspension of Internet domain names.

“Combating piracy and counterfeiting on the Internet should be a priority for Congress, but care should be taken to ensure that legislative attempts to protect intellectual property rights do not harm other vital interests,” said Ryan Radia, CEI Associate Director of Technology Studies. “COICA’s overbroad definition of Internet sites 'dedicated to infringing activities' risks ensnaring legitimate websites. The bill also lacks a provision ensuring that Internet site operators targeted by the Attorney General have an opportunity to defend their site in an adversary judicial proceeding."

Over three dozen law professors recently submitted a letter to the U.S. Senate raising concerns about COICA, arguing that the bill suffers from “egregious Constitutional infirmities.”

“In its current form, elements of COICA raise serious First Amendment concerns,” said Hans Bader, CEI Senior Attorney. “If enacted, the law will not likely survive a constitutional challenge.”

Radia argued that Congress should amend COICA to provide for more robust safeguards, including:

Ÿ• Providing a meaningful opportunity for Internet site operators to challenge before a federal court an Attorney General’s assertion that their site is “dedicated to infringing activities” prior to the suspension of their domain name;

• Requiring that the Attorney General, upon commencing an in rem action against a domain name, make a reasonable and good faith effort to promptly notify the site’s actual operator of the action;

• Clarifying the definition of an Internet site “dedicated to infringing activities” to ensure that websites with nontrivial lawful uses that facilitate infringing acts by third parties will not face domain name suspension if their operators:

° Comply with legitimate takedown requests from rightsholders;

° Do not receive a financial benefit directly attributable to infringing activities;

° Do not design their site primarily for the purpose of facilitating infringing activities; and

° Do not induce infringing activities;

• Instructing the Department of Justice and federal prosecutors not to request that domain name registrars, registries, or service providers suspend domain names that have not been deemed to be “dedicated to infringing activities,” or otherwise unlawful, by a federal court;

• Requiring the Department of Justice to compensate domain name registrars, registries, and service providers for any reasonable costs they incur in the course of disabling access to infringing domain names; and

• Eliminating the provisions requiring the Department of Justice to publish a public listing of Internet Sites “alleged to be … dedicated to infringing activities” but that have not been the target of a successful in rem action by the Attorney General to disable access to their domain name.

For more information, see Ryan Radia's Tech Liberation post, "Five Ways Congress Can Fix COICA Copyright Bill."