Bring Out Bigger Cannons to Fight Online Pirates

In their continued frenzy to stop online piracy, the entertainment industry has supported a new bill in the Senate titled the “Combating Online Infringement and Counterfeits Act" (COICA). Patrick Leahy (D-Vt.) introduced the bill on the last day of the Senate session in the hope that it could be pushed through before Congress adjourned. Despite support from both sides of the aisle, lawmakers ran out of time, and shelved the act until after the Fall recess.

The proposed legislation would give the Department of Justice the power to file a civil suit against a website providing pirated material, and then file for a court order to require domain registries, ISPs, DNS providers, and others to block access to the site. The DOJ would also maintain a list of sites that it believes provide infringing content, but has yet to file suit against. Service providers are encouraged to also block these sites, and are given legal protection if they choose to do so. Critics have taken issue with the bill, claiming that it could lead to technical issues and the infringement of free speech rights.

A major problem with this legislation is its definition of which sites violate the law. It allows the DOJ to seek a court order for any Internet site that is “dedicated to infringing activities.” This includes a a site that is “primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator” to distribute copyrighted or counterfeit materials. Combating Online Infringement and Counterfeits Act, §2324 (a)(2), 111th Cong. (2nd Sess. 2010).

A judge considering a court order blocking the site could either read the law broadly or narrowly, and either would have severe consequences. A broad reading would block sites that have both legal and illegal content. This could include sites like Rapidshare, or Megaupload, which allow users to share any type of file, copyrighted or otherwise. More alarmingly, the users of online forums regularly share copyrighted materials with other members. If a court order blocked this kind of site, it would raise a myriad of First Amendment issues, especially because the order would be issued without a chance for the accused site to defend itself.

On the other hand, a judge reading the statute narrowly would render the law ineffective. If a site only needs to have another purpose besides distributing copyrighted or counterfeit material, then this could easily be designed around. The owner of a website could change the format so that links to infringing works are presented in conjunction with a blog, a forum, or any other legitimate online activity. Furthermore, a high judicial standard for showing a violation would require the DOJ to present more evidence, thus slowing down the process. In addition to consuming valuable governmental resources, the sheer number of piracy sites would make the entire exercise futile.

Although piracy and counterfeit goods may be a problem in the United States, an ineffective bill that potentially violates the free speech rights is not the answer. An issue of this complexity requires careful thought and consideration, and cannot be fixed in a day, especially if that day is the last day before Congress adjourns.