While no-one would dispute that online movie piracy and sales of counterfeit goods are a global problem in dire need of a solution, none of the proposed solutions to date have found real traction and have in many cases been as controversial and criticized as the ills they purport to solve. The latest would-be solution to enter the fray is the Combatting Online Infringement and Counterfeits Act ("COICA"), introduced in September by U.S. Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT), approved unanimously by the Senate Judiciary Committee on November 18, and now headed to the Senate for full debate.
Essentially, COICA authorizes the Attorney General ("AG") to commence an action for injunctive relief against a domain name used by an internet site that is "dedicated to infringing activities", even where such domain name is not located in the United States. This type of relief is "in rem", meaning it would be a judgment against the property (i.e. the domain name), rather than an individual, as obviously many infringers are outside the U.S. and not themselves reachable by U.S. laws. Mechanically, the injunction would force U.S. based domain registrars, ISPs and other operators of domain name system servers to prevent access to the disputed domain name.
COICA further directs the AG to maintain a public listing of the domain names that the Department of Justice ("DOJ") determines are "dedicated to infringing activities" but for which the AG has not yet filed an action. "Dedicated to infringing activities" is broadly defined as referring to a site that is: (1) subject to civil forfeiture; (2) designed primarily to offer goods or services in violation of federal copyright law; or (3) selling counterfeit goods. Being removed from the AG's list requires the party seeking de-listing to petition the AG and seek a judicial determination in a civil action.
Proponents such as the Recording Industry Association of America, Motion Picture Association of America, and the Software and Information Industry Association back the bill as a necessary measure to protect U.S. intellectual property from theft to the annual tune of $100 billion. Opponents such as the Electronic Frontier Foundation and an array of privacy advocates, civil rights groups and academics contend that COICA is overreaching, in that it could be used to slap injunctions on service providers which only offer a route to an infringing site and are not infringing themselves nor even condoning infringement. Further, opponents argue that the DOJ list is tantamount to a blacklist without judicial review and from which one can only find relief via the time and expense of litigation.
While there may be some delays on the road to or through the Senate (Senator Ron Wyden (D-OR) has already come out to vocally oppose the Bill), this will be an important one to watch...