Copyright Infringement and Censorship

“Censorship always defeats its own purpose, for it creates in the end the kind of society that is incapable of exercising real discretion.”

Henry Steele Commager, 1902-1998, writer and historian

Last November I sent a tweet to my senator, @ChuckGrassley, expressing my disappointment in his support of S.3804 Combating Online Infringement and Counterfeits Act (COICA). After reading a summary of the Act, it appeared to me to be more on Internet censorship rather than dealing with online infringement issues. Much to my surprise, late January I received a letter from Senator Grassley in response to my tweet.

In his letter, he stated his appreciation in my contacting him to express these concerns and assured me this Act was not about Internet censorship, but fighting against “Internet sites” that are “dedicated to infringing activities”.

“This bill is not aimed at censoring the Internet, but to bring to justice online sites that, if they existed in the physical world, would have the law immediately brought against them.” Senator Charles Grassley

I confess, at that time I had only read a summary of the Act and not the Act itself. So, I decided to read the entire Act and determine for myself its purpose. Here is my conclusion.

This Act assumes guilt until proven innocent, there is no due process. It does nothing to bring to justice the person or persons who are infringing on copyright material. And, it censors the Internet by “locking the domain” so no one can access the site.

Following are the specifics of the Act that has brought me to this conclusion.

Guilty Until Proven Innocent

As Senator Grassley stated, this Act targets Internet sites that have infringing material. Section 2. Internet Sites Dedicated To Infringing Activities, provides the definition to determine if a site is “infringing”.

Section 2, (a)Definitions, (1) “an Internet site is “dedicated to infringing activities” if such site- ... (B) (i) is primarily designed, or has no demonstrable commercially significant purpose or use other than, or is marked by its operator, or by a person acting in concert with the operator- (I) to offer goods or service in violation of title 17, United States code, ... ”

Section 3 goes on to define what is necessary for the Attorney General to investigate an “infringing” site. “The Attorney General shall ... “provide guidance to intellectual property rights holders about what information such rights holders should provide the Department of Justice to initiate an investigation pursuant to this Act; ... ”

A Copyright Infringing Name

Once a site is deemed to be “infringing”, the Attorney General will file an application to the court to “ ... issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any further activity in violation of this section, in accordance to rule 65 of Federal Rules of Civil Procedure.” [Section 2 (b) Injunctive Relief]

First I need to define a couple of terms; injunction and domain name.

Injunction, a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another.

Domain name, an alphanumeric designation as part of an electronic address on the Internet. An example of a domain name is janenerenaud.com.

To summarize, a temporary restraining order, preliminary injunction, or an injunction, all legal actions issued to a person, is issued to a domain name, an electronic address, rather than the operator of the website. I would think if you want to stop the distribution of copyright material, the injunction should be issued to the person breaking the law.

Next the Attorney General commences with an in rem action. In rem action is an action to determine title to property and the right of the parties.

Section 2 (c) In Rem Action, (1) In General “ ... an in rem action against the domain name or names used by an Internet site ...” Once again, against a name, not the operator of the website, just a name that someone is renting.

The Act then discuss jurisdiction, which gets interesting when discussing international sites and where jurisdiction would fall. But this point will be saved for another blog post.

Go After the Service Providers

After jurisdiction is defined and provisions made for blocking any goods and services from entering the United States, the Act continues with the serving of court orders.

Section 2, (e) Service of Court Order. “ ... the Federal law enforcement officer shall serve any court order issued pursuant to this section on the domain name registrar or, if the domain name registrar is not located within the United States, upon the registry.“

The industry defines a domain name registrar as an accredited organization or commercial entity registry to manage the reservation of Internet domain names. In other words, the company that rents domain names, similar to the phone company renting you a phone number.

Internet Censorship

The section continues.

“Upon receipt of such order, the domain name registrar or domain name registry shall suspend operation of, and may lock, the domain name.” [Section 2, (e) Service of Court Order., (1) Domestic Domains]

A quick lesson on the Domain Name System (DNS). Think of DNS as directory assistance for the Internet. When you access an Internet site, such as www.janenerenaud.com, a request is sent to DNS to determine how to get to this site. The DNS servers have a database with all domain names and their associated internet protocol (IP) addresses. An IP address is like a phone number. So, when you type www.janenerenaud.com into your web browser, a request goes out to DNS to get the “phone number” for this site so that your browser may be connected.

A key point to note. There are 13 DNS server clusters, worldwide. The United States government, under the Department of Commerce, maintains control over all the DNS servers. When a change is made in DNS, it gets populated to all the intermediate DNS servers globally. Suspending operation of, or locking the domain name, will block access to this site worldwide. Nobody will be able to access it.

In essence, this Act will give the US government the power to censor the Internet worldwide, from sites it deems “infringing”.

To better explain, here is an analogy to sum this up.

Let’s say there is a person who opens a shop in your city. The shop owner hires a sign maker to makes signs advertising his shop. He then has the sign maker place these signs on main street directing potential customers to his shop. This shop is accused of allegedly infringing on someones copyright. Based on this Act, the government serves an injunction and an in rem action against the sign maker and has the sign maker remove all the signs providing directions to the shops location. Potential customers can no longer find the shop, even though the shop still exists. The person operating the shop may continue doing business. Based on this Act, no action is taken against the person operating the shop.

Additional Actions

This Act requires all financial transaction providers to stop all transactions to the site as well as providing notice that the site no longer has the authorization to display their trademarks. [Section 2, (e) Service Of Court Order, (B) Required Actions, (ii)]

The Act also provides the ability for the Attorney General to bring action against any party, service provider, domain registrar, or financial institution, that does not comply with court orders. So if any of these companies feel that the court order is not justified, they still must comply or risk action begin taken against them. [Section 2, (g) Enforcement of Orders, (1) In General]

And finally, an “Intellectual Property Enforcement Coordinator” on order of the Attorney General, must post a list of all “infringing” sites. A blacklist that would publicly condemn Internet sites without due process. [Section 2, (f) Publication of Orders]

Other Laws

So why this Act. We already have two other laws that address this very issue of sites that infringe on copyright material. First is US Code Title 17 Copyrights, which appears in Section 2 of COICA, defining copyright infringement and remedies. Additional chapters of US Code 17 include Digital Audio Recording Devices and Media, and Sound Recordings and Music Videos. And second, The Digital Millennium Copyright Act of 1998 (DMCA). Specifically written to implement two World Intellectual Property Organization (WIPO) treaties and address a number of other copyright issues. Why do we need a third law?

In my opinion, since this new Act does nothing to stop the person or persons infringing on copyright material, this Act is about giving the US government the ability to block Internet sites. In essence, censor the Internet, globally.

How can we, as a nation, condemn other countries for blocking and censoring the Internet, China, Egypt, and Iran to name a few, and then write legislation that gives the US government the same power? One might argue that the government would only block sites that were breaking the law. As we have seen in other parts of the world, the definition of breaking the law can change quickly. The government should not have this power.

So that is my reasoning to state that this Act is about Internet censorship, rather than protecting the intellectual property of others. I now lovingly refer to this Act as “Censorship Of Internet Content Act (COICA)”.

Please don’t misunderstand me, copyright infringement is a problem on the Internet, but this Act does nothing to fix that problem. I encourage you to read this Act and come to your own conclusions. If you agree with my assessment, please contact your state representatives and senators to express your concern and request they vote against this Act.

Following are some other links you may find interesting reading.

The Electronic Frontier Foundation’s (EFF) summary of COICA

EFFs list of sites that could be taken off-line and why

Law Professors’ Letter in opposition to S.3804

Internet Assigned Numbers Authority (IANA), under the DOC

Internet Corporation for Assigned Names and Numbers (ICANN)

United States Code by Title

ICANN Glossary of Internet Terminology