S. 3804 – The combating online infringement and counterfeits act

Senator Patrick Leahy yesterday introduced the “Combating Online Infringement and Counterfeits Act” (COICA s. 3804). This bill may allow the Attorney General and the Department of Justice to break the Internet one domain at a time — by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites deemed to be “dedicated to infringing activities”.

Will your favorite site look like this soon?

Senator Patrick Leahy yesterday introduced the “Combating Online Infringement and Counterfeits Act” (COICA s. 3804). This bill may allow the Attorney General and the Department of Justice to break the Internet one domain at a time — by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites deemed to be “dedicated to infringing activities”.

San Francisco based Electronic Frontier Foundation is heavily opposed to this bill on the grounds that it may limit free speech. In a Legislative Analysis,  Richard Esguerra wrote

To us, COICA looks like another misguided gift to a shortsighted industry whose first instinct with respect to the Internet is to try to break it. There are still many questions to be answered, but one thing is for sure — this bill allows the government to suppress truthful speech and could block access to a wealth of non-infringing speech, and the end result will do little to protect artists or mollify the industries that profit from them.

Copyright holders already have the tools required to remove infringing content in the form of DCMA notices. I am generally weary of any government intervention to remove or censor content that it deems to be infringement. Unlike DCMA which is used by copyright holders to specifically target infringing content, this bill uses the broad stroke of a government agency to shut down an entire site. Many questions remain. For example, at what point will Blogger or Tumblr be labeled as an infringing site and be shut down blacking out all content including those which are not infringing? Does the infringing material have to be 10% or 90% of the content?

This bill has no effect on sites hosted outside of the U.S. as the U.S. government has no jurisdiction. Even if they are able to block foreign sites, there are plenty of technical means to circumvent such blocking as other governments have learned. Moreover, blocking websites has no effect on the majority of online piracy which is done through bittorrents which can now operate without trackers using distributed hash tables.