Francis Anthony Govia
September 29, 2010
New U.S. legislation will impact every user of the Internet. The “Combating Online Infringement and Counterfeits Act” would empower the U.S. Department of Justice to shut down, or block access to, websites found to be dedicated to infringing activities. The bill also contains provisions to block sites with domain names and Top-Level Domains (TLDs) that are maintained by overseas companies, which exist outside the U.S. legal jurisdiction and enforcement mechanism. The Justice Department would obtain court orders directing United States-based Internet Service Providers to stop resolving the IP addresses that allow customers in the United States to access the infringing websites. As a result, the sites will be inaccessible to U.S.-based Web users who do not use some sort of proxy service. The bill was read twice and referred to the Committee on the Judiciary last Monday; it is sponsored by Senators Hatch, Leahy, Klobuchar, Whitehouse, Schumer, Kohl, Specter, Durbin, Bayh, Voinovich, and Feinstein.
|The ramifications of more regulation will result in the free and booming frontier of cyberspace, now functioning as the gold rush for enterprise, ceasing to exist. Photo: Chris Metcalf.|
The legislation is expected to have strong support in Hollywood, labor unions and manufacturers, but in some circles — namely grassroots political organizations, alternative press, and Internet start-ups — the response has been lukewarm, and even questioning. They are concerned that the “other purposes” of the legislation include censorship and, if made law, will employ the Justice Department to police the Internet, eventually resulting in the disruption of the free flow of information and trade globally.
To some extent, their concerns are formed by experience. There have been examples of business censorship, and government legislation to curtail what is viewed on the Internet. Infowars reported recently that “London’s St. Pancras International, one of the biggest transport hubs in the West,” implemented “stringent filters that block users of their Wi-Fi service from accessing even mildly political websites.” Sites like prisonplanet.com and thinkprogress.org were not available to customers in some areas. There are plans in Australia to promulgate legislation to institute a “mandatory, countrywide filtering system,” which supporters say is “designed to keep out child abuse content, but which blocks a much wider variety of content and topics.” And recently when media reported about an Iranian website with cartoons denying the Holocaust, some viewers in the U.S. discovered that access to the site was blocked.
Granted, there is recognition in Washington that the Internet is the new frontier for global enterprise, but some perceive that Washington still views the world through the lens of a bygone era. A critic of the bill told me that many nations, including the United States, legislate for businesses founded in a brick-and-mortar world; and attempts to regulate the Internet would be like turning back the clock.
“Nations will act independently and this will be detrimental to customers that use the Internet near and far,” advised the critic.
A similar sentiment was echoed by former Italian Prime Minister, Romano Prodi, in a speech at the Foreign Ministry Faculty of International Relations in Tehran. Mr. Prodi suggested that Italy within Europe must play a greater role in matters of global importance, and that may entail Europe’s acting with greater independence of the United States. The message, though given on a different topic, is not one that instills confidence to those who see governments encroaching on their privacy, and would prefer unrestricted use, or less regulation, of the services for which they pay.
The U.S. legislation for infringement is written to tackle many concerns, and is certainly not archaic in regard to lawmakers’ ambition to affect what goes on well beyond the scope of U.S. jurisdiction.
For infringing sites outside the United States, it provides for in rem action in the District of Columbia to prevent the importation into the United States of goods and services directed to U.S. residents. The effect of this “importation” must be that the owner or operator of the infringing site must harm intellectual property rights holders that are residents of the United States.
The Justice Department will be granted power to serve court orders upon the registry where the domain name registrar is not located in the United States, and upon receipt of such an order, the domain registry must suspend operations of, and lock, the domain name of the infringing site.
During the action intended to “lock the domain name,” a court may determine, at a minimum threshold, that an Internet site is not conducting business to residents in the United States if the Internet site “states that it is not intended, and has measures to prevent, infringing materials from being accessed in or delivered to the United States,” including other provisions in subsection (d)(2)(B). The owner or operator of the “infringing site” shall also have recourse to petition the Justice Department to remove his domain name from an offending list, or petition the court to modify, suspend, or vacate the order in accordance with subsection (h)(1)(B).
The bill has an immunity clause which protects any entity from a cause of action in U.S. courts or administration agency for any action reasonably calculated to comply with an action intended to prevent the infringing site from continuing to do business with U.S.-based customers, receive financial transactions, and other matters under subsection (e)(3).
The U.S. legislation does not appear to put the onus on any businesses, such as Internet Service Providers, to stop known infringement from occurring. This is an interesting stance. In February, an Australian ISP won a precedent-setting copyright infringement lawsuit (Down Under) against the Motion Picture Industry. The bill sponsors may be cognizant of this ruling.
Softpedia reported that 34 U.S. movie studios and broadcasters filed a lawsuit in Australia against iiNet after the ISP refused to send warning letters to its customers who illegally downloaded movies using BitTorrent. The Australian Justice, Dennis Cowdrey, ruled that while iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding that the ISP authorized the infringing activities. Possibly, Hollywood supporters of the U.S. infringement legislation now agree with Cowdrey’s ruling that to ask ISPs to police the Internet would “open them any number of legal claims for anything that might happen over their pipes,” and that would engender strong opposition to the legislation among ISPs in the United States. However, to take on the responsibility of policing the Internet may not seem a burden to Obama’s Justice Department.
- A d v e r t i s e m e n t
Certainly, Hollywood will welcome any new infringement legislation aimed at stemming the loss of royalties through piracy and copyright violation in the digital age. Infringers often meet efforts to protect intellectual property with resilient and thought-out action to thwart the law. As a law intern in Thailand I learned, for example, that illegal duplication facilities for CDs and DVDs existed in mobile transportation. Persons engaged in copyright violations avoided the ability of local enforcement to easily locate them and shut them down. It is a sure bet that those engaged in infringing activities overseas will find ways and new technology to evade laws promulgated by a foreign government (like the U.S.) that will have no jurisdiction over them.
The Obama Justice Department, which tapped Hollywood lawyers, may be charged to police Intellectual Property — an assignment to which attorneys for President George W. Bush were “strongly opposed.” The Republican President threatened to veto a previous version of the bill sponsored by the same Sens. Patrick Leahy and Arlen Specter.
In correspondence to the Senators, attorneys for President Bush wrote that they “strongly opposed” expanding the powers of the Justice Department. Doing so, they said, could undermine the Department’s prosecution of criminal cases and transform it into an office “serving as pro bono lawyers for private copyright holders.”
It is obvious during this era when citizens’ rights are curtailed and infringed upon, with the bipartisan sponsorship of the bill and the composition of the current administration, that the infringement legislation has a better chance of becoming law. But will it open a Pandora’s Box? Will it do exactly what critics suspect it is intended to do: censor more of the Internet, create bottlenecks that will allow governments to intrude on the flow of information and services around the world, and do possible damage to a wider spectrum of businesses (other than those it is intended to protect)?
Many of the dynamic economies that U.S. businesses now compete against were born out of things other than a free market; and other economies are driven, or manipulated by State controls, as is the case of China. Foreign nations may follow the U.S. lead in writing laws to regulate the Internet and address their concerns, but not with the results U.S. legislators necessarily hope to engender.
Through retaliation, or even pretext, governments may decide to regulate, or shut down legitimate Internet traffic and services to violate human rights, hinder trade, and to engage in industry espionage. We already have examples of these developments with China’s efforts to regulate Google, and the recent firestorm when India and other nations, acting within their security concerns, decided to take action to regulate Blackberry and gain access to users’ encrypted corporate e-mails and messages. The offices of Sen. Byron L Dorgan and Rep. Sander M. Levin of the Congressional-Executive Commission on China undertook a hearing in March to investigate if China’s efforts to regulate the Internet contravene free trade and human rights. Delegates to the hearing cited that:
China’s Internet users remain subject to the arbitrary dictates of state censorship. More than a dozen agencies are involved in implementing a host of laws, regulations, and other tools to try to keep information and ideas from the Chinese people . . .
China’s censorship practices and control of the Internet have had a terrible impact on human rights advocates. These include ordinary people who promote political freedoms or try to organize online . . . attempting to share information about ongoing government repression.
Internet censorship and regulation in China have serious economic implications for many U.S. companies . . . [and] often run against basic international trade principles of nondiscrimination and maintaining a level playing field.
To these charges, China responded that it laws regarding the Internet are not much different than those of the West, and that critics are applying a double standard.
Perhaps U.S. lawmakers have forgotten a cause it often champions: that respect for human rights, deregulation, and open trade are important to a dynamic and properly functioning global community. As ownership of patents, trademarks, and copyrights becomes a contested grey area, nations may block business occurring over the Internet through the guise of copyright infringement. Only the rich and powerful will have the resources to go through the legal hurdles at home and/or abroad to clear their domains of actions to lock them, and resume operations. Damage would be done to a business during the course of a legal action brought against it; its customers may simply believe that the domain ceases to exist, with transactions lost forever.
Small businesses could be shut out of that presumptuous dream of going global and becoming rich, while the elite, big businesses and powerful governments can dominate cyberspace. Many micro-states and individuals could be harmed, and educational pursuits stifled through this world of more legislation, regulation, and censorship.
Why should we be concerned about this future for the Internet?
Well, because the Internet is now everyone’s classroom; and perhaps more-so it has become individuals’ business personality. A properly set up website for a Mom-and-Pop enterprise can look as good as that of a billion dollar company’s front-store. The ramifications of more regulation will result in the free and booming frontier of cyberspace, now functioning as the gold rush for enterprise, ceasing to exist.
The U.S. may find it useful to confer with trading partners in the North and the South, and come to an understanding that perhaps unilateral action is not the way to address concerns in regard to a frontier in which everyone has an interest. President George W. Bush may have gotten it right when his attorneys writing on his behalf to Sens. Leahy and Specter implied, when taken altogether, that U.S. law already provides owners of Intellectual Property with effective legal tools to protect their rights. It need not go in the direction proposed by the Senators.
No one wants Washington’s efforts to backfire and force us to return to a world where we have to resort domestically to find the goods and services that we need, such as cheap medicine. Or, to have to wait on someone in a dusty library to find a book or paper we once could have accessed readily over the Internet. Or, in some far corner of the world men will cower in fear of infringing before they cite links as sources of information. A Big Brother that will censor access to the latest celebrity sex videos, or certain religious texts or even Osama bin Laden’s latest rant (however misguided they may be). The result of this could be that owners of presumed “infringing sites” must raise ungodly sums of money to hire attorneys to clear their domain names, while good sites like WikiLeaks (which make governments accountable for their actions) are shut down or blocked here and abroad through a pretext; and Mom-and-Pop operating a start-up Internet business within the cornfields of America are locked out through action suggested by a smooth operator with deep pockets who knows how to play the system and use it against his competitor, blocking sites because somebody with power did not like the owner’s point of view.
Francis Anthony Govia received a Bachelor’s degree in International Relations at Boston University where he studied U.S. National Security and Foreign Policy with teachers who inspired him, such as General Fred F. Woerner(Ret.), Ambassador Stephen R. Lyne(Ret.), and Joseph Fewsmith. He received a law degree at the University of Wisconsin-Madison, and is a contributor to Activist Post.
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