Internet Censorship Bill Proposed by Congress Risks Dismantling the Internet

Posted by Cyberbear on October 21, 2010 in Intellectual Property, Legislation |

Posted by: Girard Kelly


A bill recently introduced by Congress called S. 3804, the Combating Online Infringement and Counterfeits Act (COICA) by Sen. Patrick Leahy (D-VT) and Sen. Orrin Hatch (R-UT) attempts to combat copyright infringement on the Internet by creating a blacklist of Internet domain names which are controlled though the U.S ICANN Dynamic Name Service (DNS). It creates two distinct blacklists that would require Internet Service Providers (ISPs) to block blacklisted domain names otherwise known as website addresses that are used to locate their servers on the Internet. The first blacklist would contain domain name registrars that have been served any court order from the Attorney General in regards to infringement activity. The second blacklist would “maintain a public listing of domain names that, upon information and reasonable belief”[8] that the Department of Justice determined without judicial review were “Dedicated to Infringing Activities”[8]. This distinction would apply to any website where counterfeit goods or copyrighted material are considered “central to the activity of the Internet site”[8]. The consequences of this bill would essentially dismantle the infrastructure of the Internet and cause irreparable harm to the continued existence of technological free speech and must not be allowed to become law.
Although the bill only dictates that the first blacklist is subject to censorship, it provides incentive for service providers to also block websites on the second list pro-actively in order to guarantee immunity. This distinction of whether or not a website could be considered “dedicated to infringing activities” and then subsequently blocked raises significant legal, political and technical issues. First and foremost its enactment would pose a serious threat to Free Expression thereby imposing “prior restraints” on speech. Restricting speech in this manner has been expressed by the courts only to be used in extreme cases and is considered “the most serious and the least tolerable infringement on First Amendment rights.”[3] Several technology rights organizations such as the Center for Democracy and Technology(CDT) and Electronic Frontier Foundation(EFF) have spoken out against the censorship of free speech and the Internet in “An Open Letter From Internet Engineers to the Senate Judiciary Committee”[1] that states; “If enacted, this legislation will risk fragmenting the Internet’s global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure.”[1] These advocacy groups recognize the fundamental dangers of censoring entire perceived copyright infringing domains that would inevitably lead to blacklisting legal, law abiding content and sub-domain websites.
If these blacklists are implemented they will very quickly begin to reshape the Internet. As more and more websites are blocked, third party services will emerge to meet the demand to circumvent these blacklisted DNS servers. These circumventing services would expose the inherent weakness of the COICA blacklists by enabling users to simply install an Internet web-browser plugin that would allow them to choose an alternative DNS server with the click of the button. Although seemingly insignificant from the end users’ perspective, these plugins essentially bypass all levels of trust and security we have come to expect with DNS. This ‘re-direction’ away from internationally maintained and monitored DNS servers would encourage the malicious use of these third party services or plugins to expose Internet users to ‘untrusted’ DNS servers that could easily hijack their passwords and confidential information. This new ‘fragmented’ Internet would be a step backward in technological progress and innovation that would essentially be equivalently analogous to communist China’s Internet firewall.[22] China’s firewall blocks keywords and websites that the Government deems inappropriate. If this sounds familiar it is because China’s firewall is essentially a blacklist of keywords and domain names that ‘facilitate’ inappropriate infringement, extremely similar to what the COICA bill recommends.
From a legal perspective the broad use of the term “facilitating” in the bill, specifically referring to copyright infringement could undermine the U.S secondary liability law as stated in Sony Corp. of America v. Universal City Studios, Inc. that it “does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.”[20][9] By this definition the COICA bill would raise concerns about constructive knowledge for contributory infringement purposes, as set forth in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., “by intentionally inducing or encouraging direct infringement.”[21][9] if service providers are aware of blacklisted websites but do not discontinue providing service to those websites. These inconsistencies could threaten existing copyright exceptions, limitations and fair use defenses as wells as the DMCA Safe Harbor provisions.
Under this COICA bill for example, if a website were perceived to be “dedicated to infringing activities”[8], yet was operating under fair use and subsequently added to the blacklist and censored, service providers could be held liable for Misrepresentation under 17 U.S.C §512(f)(2). Pursuant to section §512(f)(2) “any material or activity that was removed or disabled by mistake or misidentification”[16] could indicate that the infringers would “… be liable for any damages, including costs and attorneys’ fees…”[16] The Safe Harbor provisions were enacted to protect against this type of abuse on free speech and support the advocacy work of the lawyers who fight these battles by enabling them to recoup their legal fees. Although the bill outlines a lengthy process for blacklisted domains to get off the “blacklist” and receive a “judicial review”, it is an opt-out process that threatens the very existence of the Internet. It creates an ambiguous situation where under the proposed COICA legislation domains placed on these blacklists may never find their way off. These blacklisted domains would need significant financial resources in order to peruse a misrepresentation counter-claim or successfully defend the legality of their website against the subjective evidence of the Attorney General, further complicating the issue.
The proposed COICA bill is attempting to leapfrog the current DMCA copyright infringement takedown notices by going above and beyond the removal of infringing content to include not just the content itself, but the entire domain. In the same way that the Safe Harbor provisions of the DMCA protect ISPs from contributory liability, these blacklists specify the “constructive knowledge” that service providers must follow in order to maintain immunity. This situation effectively creates a piracy “witch hunt”, that enables the Government to circumvent the very copyright laws meant to protect publishers and consumers and ultimately remove the judicial system entirely from excising due process in protecting Free Expression on the Internet. As of the writing of this article the Senate Judiciary Committee will not be considering the COICA bill until after the midterm elections this November 2010. This temporary victory should hopefully serve as a wake up call to Internet users worldwide. Now is the time to spread awareness about this critically important issue and exercise your freedom of speech on the Internet by getting involved with organizations such as the CDT and EFF in order to educate our elected representatives; “Tell Your Senator: No Website Blacklists, No Internet Censorship!”[17]
References


  1. 1.EFF, “An Open Letter From Internet Engineers to the Senate Judiciary Committee | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,

    http://www.eff.org/deeplinks/2010/09/open-letter

    .


  2. 2.“Bill Summary & Status – 111th Congress (2009 – 2010) – S.3804 – THOMAS (Library of Congress),” n.d.,

    http://thomas.loc.gov/cgi-bin/bdquery/z?d111:S3804

    :


  3. 3.Center for Democracy an Technology, “CDT Memo on the bill,” n.d.,

    http://cdt.org/files/pdfs/Leahy_bill_memo.pdf

    .


  4. 4.“Censorship of the Internet Takes Center Stage in “Online Infringement” Bill | Electronic Frontier Foundation,” n.d.,

    https://www.eff.org/deeplinks/2010/09/censorship-internet-takes-center-stage-online

    .


  5. 5.Demand Progress, “COICA Fact Sheet | Stop the Internet Blacklist! | Demand Progress,” Demand Progress, n.d.,

    http://demandprogress.org/blacklist/coica

    .


  6. 6.David Segal, “David Segal: Stop the Internet Blacklist,” The Huffington Post, September 27, 2010,

    http://www.huffingtonpost.com/david-segal/stop-the-internet-blackli_b_739836.html

    .


  7. 7.Mike Masnick, “Even Without COICA, White House Asking Registrars To Voluntarily Censor ‘Infringing’ Sites | Techdirt,” Techdirt, September 30, 2010,

    http://www.techdirt.com/articles/20100929/20293711230/even-without-coica-white-house-asking-registrars-to-voluntarily-censor-infringing-sites.shtml

    .


  8. 8.First draft text of the COICA bill

    , n.d.,

    http://www.eff.org/files/filenode/coica_files/COICA.pdf

    .


  9. 9.“Letter of Concern to the Senate Judiciary Chair and Ranking Member,” September 27, 2010,

    http://www.eff.org/files/filenode/coica_files/Joint%20Letter%20re%20S3804%20%5BCOICA%5D.pdf

    .


  10. 10.Jaikumar Vijayan, “Online IP Protection Bill Sparks Outrage – PCWorld,” PCWorld, n.d.,

    http://www.pcworld.com/article/206514/online_ip_protection_bill_sparks_outrage.html

    .


  11. 11.Mike Masnick, “RIAA Claims That If COICA Isn’t Passed, Americans Are ‘Put At Risk’ | Techdirt,” Techdirt, September 29, 2010,

    http://www.techdirt.com/articles/20100928/23171111206/riaa-claims-that-if-coica-isn-t-passed-americans-are-put-at-risk.shtml

    .


  12. 12.Govtrack, “S. 3804: Combating Online Infringement and Counterfeits Act (GovTrack.us),” Govtrack.us- A civic project to track Congress, n.d.,

    http://www.govtrack.us/congress/bill.xpd?bill=s111-3804

    .


  13. 13.EFF, “Sites COICA may take offline, and why | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,

    http://www.eff.org/pages/sites-coica-may-take-offline-and-why

    .


  14. 14.Demand Progress, “Stop the Internet Blacklist! | Demand Progress,” Demand Progress, n.d.,

    http://demandprogress.org/blacklist/

    .


  15. 15.EFF, “The COICA Internet Censorship and Copyright Bill | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,

    http://www.eff.org/coica

    .


  16. 16.“U.S. Copyright Office – Copyright Law of the United States,” n.d.,

    http://www.copyright.gov/title17/

    .


  17. 17.Tim Jones, “Victory: Internet Censorship Bill is Delayed, For Now | Electronic Frontier Foundation,” Electonic Frontier Foundation, September 30, 2010,

    http://www.eff.org/deeplinks/2010/09/victory-internet-censorship-bill-delayed

    .


  18. 18.Mike Masnick, “What Else Might COICA Be Used To Censor | Techdirt,” Techdirt, September 29, 2010,

    http://www.techdirt.com/articles/20100928/16500711201/what-else-might-coica-be-used-to-censor.shtml

    .


  19. 19.Julian Sanchez, “Wiretapping the Internet | The American Prospect,” The American Prospect, October 4, 2010,

    http://prospect.org/cs/articles?article=wiretapping_the_internet

    .


  20. 20.Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984).


  21. 21.Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).


  22. 22.“Great Firewall of China | Home,” n.d.,

    http://www.greatfirewallofchina.org/

    .

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