COICA:The Combating Online Infringements and Counterfeits Act is a bill ostensibly intended to combat the piracy of software,& movies,as well as counterfeit physical goods.
COICA,if put into effect,would be both devastating to free speech on the internet,and would wreak havoc on the technology which makes the internet work. To explain the magnitute of the threat that COICA poses to Freedom of Speech,I will first offer a analogy by way of Swiftian satire.Next,I will present a letter written by legal scholars who argue that the bill is brazenly unconstitutional & will eventually be struck down.
What's more,they hint at the possibility that the passage of the bill will undercut the ability of the United States to protect the Free Speech rights of it's own citizens from foreign despots who wish to use copyright infrigement claims to censor Americans.They further add that it will undercut America's ability to defend the human rights of dissidents in foreign countries,( such as Iran). To address the threat to posed to the technological structure of the internet by. COICA I have linked to a letter written by the engineers of the internet .The engineers warn of catastrophic harm to the structure of the internet if the bill is put into effect.Finally I conclude with a list of links for more info. A analogy by way of Swiftian Satire:
Imagine you live in a apartment building with your family.You mind your own business.You harm no one.
Then,one day,you are awakened from your sleep to find your apartment complex being evacuated & bulldozed.
The reason?
The Attorney General has alleged that a pedophile lives in your building;he therefore,quite logically,got a court to order the destruction of the whole building,& the detention of everyone who lives there.
The court order was issued ex parte,(without notification to the other party). You run outside & see the Congressman who sponsored the bill.He is giving a press conference praising his handiwork.
You demand to know why they are demolishing your apartment.The following conversation ensues:
Congressman:"We are fighting pedophilia.Do you oppose fighting pedophilia?"
You:"No!Of course not!But why are you punishing us for the crimes of this one pedophile?And why weren't we warned that a convicted sex offender lived in the building?"
Congressman:"Oh,he's not been convicted yet,merely accused.He may well be innocent."
You:"THEN WHY ARE WE BEING THROWN OUT OF OUR HOMES WITH NO WARNING?!WHY DON'T YOU JUST ARREST HIM?!"
Congressman:"That would be very inconvient for us.Why,we would have to go to the particular indivdual's apartment and arrest him.We much prefer bulldozing the whole structure."
YOU:WHY?!
Congressman:"I'm not sure myself.But we decided on that for some reason."
YOU:"But why are you punishing us for the crimes of this one man?"
Congressman:"Maybe if you didn't want to be evicted,you should not have moved into a apartment complex where a pedophile resides."
YOU:"HOW WERE WE TO KNOW THAT SOMEONE WHO WOULD BE ACCUSED OF BEING A PEDOPHILE WAS LIVING HERE?"
Congressman:"You should have gone door to door conducting background checks.You should have kept a eye on the other apartments for things that are...unusual."
YOU:"I SHOULD HAVE DONE THESE THINGS?!YOU JUST SAID THAT THE GOVERNMENT CAN'T EVEN BE BOTHERED TO TARGET THIS PARTICULAR INDIVIDUAL ,& HAS TO TEAR DOWN THE WHOLE BUILDING!"
Congressman:Yes,but that's different."
YOU:WHY?!
Congressman:"Because we are the Government,you're only a individual."
RRD:In this case of course we are not talking about fighting pedophiles.We are talking about fighting copyright infringement.And in this case people will not be thrown into the streets in the literal,physical,world,but they may have their blogs evicted,en masse,if they have the misfortune to use any number of domains.
Do you have a blog on Wordpress?Blogger?Typepad?Tumblr?All of these represent Domains,of which your blog is only a subdomain,a example would be theneointellectual.wordpress.com,with wordpress.com being the domain,& theneointellectual the sub-domain.The same holds true for Facebook accounts.
Imagine the power to shut down hundreds of thousands of blogs in one fell swoop.Forget for a moment whether you think a particular Attorney General & a particular Judge will abuse such power;should they have it to begin with?
This is what the Law Professors have to say on the matter.
(Their letter has been released under a Creative Commons Share-Alike with Attribution License,see here:
http://creativecommons.org/licenses/by-sa/3.0/
Summary of the Bill:
The current version of the Combating Online Infringements and Counterfeits Act (“COICA,” or “the Act”), S. 3804, would authorize the Attorney General to obtain, upon application to a federal court, injunctions in rem “against the domain name” of any Internet site “dedicated to infringing activities.” An Internet site will be deemed “dedicated to infringing activities” if (a) it is “primarily designed,” has “no demonstrable commercially significant purpose or use other than,” or is “marketed by its operator,” to offer goods and services in violation of the Copyright Act and/or the Lanham Act, and (b) the site “engages in” such infringing activities, and those activities, “taken together,” are “central to the activity” of the site. These injunctions can issue against entities which are not in any way responsible for the unlawful content, but which participate in the global Domain Name System (DNS): (a) the domain name registrar where the
target site’s domain name was registered; (b) the domain name registry responsible for maintaining the authoritative database of names for the target site’s top -level domain; and (c) any of the thousands of “service providers” (i.e., entities “offering the transmission, routing, or providing of connections for digital online communications”) or “operator of a nonauthoritative domain name server” (a category that includes virtually all service providers, and any operator of network linked to the Internet). Registrars and registries subject to the injunction will be required to “suspend operation of,” or “lock,” the specified domain name. Service providers or domain name server operators will be required to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.” Objections to the Bill
The Act, if enacted into law, would fundamentally alter U.S. policy towards Internet speech, and would set a dangerous precedent with potentially serious consequences for free expression and global Internet freedom. To begin with, the Act is an unconstitutional abridgment of the freedom of speech protected by the First Amendment. It directs courts to impose “prior restraints” on speech –the “most serious and the least tolerable infringement on First Amendment rights,” Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976), which are constitutionally permissible only in the narrowest range of circumstances. See Near v. Minnesota, 283 U.S. 697 (1931).; see also Center For Democracy & Technology v. Pappert , 337 F. Supp. 2d 606, 651 (E.D. Pa. 2004) (statute blocking access to particular domain names and IP addresses an unconstitutional prior restraint). The Supreme Court has made it abundantly clear that the category of “prior restraints,” while traditionally app
lied to
“orders forbidding certain communications when issued in advance of the time that such communications are to occur,” Alexander v. United States, 509 U.S. 544, 550 (1993) (emphasis added), also encompasses any governmental action suppressing speech taken prior to “a prompt final judicial decision . . . in an adversary proceeding” that the speech is unlawful. Freedman v. Maryland , 380 U.S. 51, 58-60 (U.S. 1965) (statute requiring theater owner to receive a license before exhibiting allegedly obscene film was unconstitutional because the statute did not “assure a prompt final judicial decision” that the film was obscene); see also Bantam Books v. Sullivan, 372 U.S. 58 (1962) (State Commission’s letters suggesting removal of books already in circulation is a “prior administrative restraint” and unconstitutional because there was no procedure for “an almost immediate judicial determination of the validity of the restraint”); Fort Wayne Books, Inc. v. Indiana
, 489
U.S. 46, 51-63 (1989) (procedure allowing courts to order pre -trial seizure of allegedly obscene films based upon a finding of probable cause was an unconstitutional prior restraint; publications “may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.”). These cases “require a court, before the material is completely removed from circulation, . . . to make a final determination that material is [unlawful] after an adversary hearing.” CDT v. Pappert , 337 F.Supp.2d, at 657 (emphasis added). The procedural seps prescribed by the Act do not come close to comporting with this Constitutional requirement. In place of a final determination after an adversary proceeding that the website in question contain infringing material, the Act permits the issuance of speech -suppressing injunctions without any meaningful opportunity for any party to contest the Attorney General’s allegations of unlawful content .
The
domain name registrars, registries, service providers, and domain name server operators against whom injunctions can be issued pursuant to the Act will have, in virtually all cases, no information whatsoever concerning the allegations regarding the presence of infringing content at the target websites because they have no relationship to the operators of those websites; they are therefore in no position, and they have no conceivable incentive, to contest those allegations. The Act contains no provisions designed to ensure that the persons actually responsible for the allegedly infringing content –the operators of the target websites –are even aware of the proceedings against them, let alone have been afforded any meaningful opportunity to contest the allegations in a true, adversarial proceeding. These target websites, by virtue of the Act’s assertion of in rem jurisdiction over domain names, may (and presumably often will) be located in, and/or controlled by citizens o
f,
other countries; the Act specifically permits courts in these actions to exercise jurisdiction provided only that either: (a) the domain name registrar, or the domain name registry , is located within the United States, or (b) the domain has been accessed by users within the United States, and the website “conducts business directed to the United States” and “harms holders of United States intellectual property rights.” Rather than give these foreign website operators a meaningful opportunity to be heard and to contest the allegations of illegality in an adversarial hearing, the Act requires only that the Attorney General notify the domain name registrant –who may, but in many cases will not, be the operator of the website in question –of an intent to proceed against the site. Injunctions may be entered entirely ex parte , without the participation of any other party, and the Act does not provide for any review of a judge’s ex parte determination that the websit
e in
question contains unlawful material. This falls far short of what the Constitution requires before speech can be eliminated from public circulation. The Act would also suppress vast amounts of protected speech containing no infringing content whatsoever, and is unconstitutional on that ground as well. The current architecture of the Internet permits hundreds or even thousands of independent individual websites to operate under a single domain name by the use of unique sub -domains; indeed, many web hosting services operate hundreds of thousands of websites under a single domain name (e.g., www.aol.com, www.terra.es, www.blogspot.com). By requiring suppression of all sub -domains associated with a single offending domain name, the Act “burns down the house to roast the pig,” ACLU v. Reno , 521 U.S. 844, 882 (1997), failing the fundamental requirement imposed by the First Amendment that it implement the “least restrictive means of advancing a compelling state interest.” ACLU v. Ashcroft , 322 F.3d 240, 251 (3d Cir. 2003) (quoting Sable Commun. v. FCC , 492 U.S. at 126 (emphasis added)); cf. O’Brien , 391 U.S. at 3
77
(even the lower “intermediate scrutiny” standard requires that any “incidental restriction on First Amendment freedoms . . . be no greater than is essential to the furtherance of that interest”); see also CDT v Pappert , 337 F.Supp.2d, at 649 (domain name blocking [“DNS filtering”] resulted in unconstitutional “overblocking” of protected speech whenever “the method is used to block a web site on an online community or a Web Hosting Service, or a web host that hosts web sites as sub -pages under a single domain name,” and noting that one service provider “blocked hundreds of thousands of web sites unrelated to” the targeted unlawful conduct); see also id., at 640 (statute resulted in blocking fewer than 400 websites containing unlawful child pornography but in excess of one million websites without any unlawful material). Precisely because of these egregious Constitutional infirmities, the Act, if enacted into law, will not survive judicial scrutiny, an
d will,
therefore, never be used to address the problem (online copyright and trademark infringement) that it is designed to address. Its significance, therefore, is entirely symbolic –and the symbolism it presents is ugly and insidious. For the first time, the United States would be requiring Internet Service Providers to block speech because of its content –a dramatic retreat from the US’s long-standing policy, implemented in §230 of the Communications Decency Act, §512 of the Copyright Act, and elsewhere, of allowing ISPs to focus on empowering communications by and among users free from the need to monitor, supervise, or play any other gatekeeping or policing role with respect to those communications. It is a policy that has not only helped make the United States the world leader in a wide range of Internet -related industries, but it has also enabled the Internet's uniquely decentralized structure to serve as a global platform for innovation, speech, collaboration, civic
engagement, and economic growth. Even more significant and more troubling, the Act represents a retreat from the United States’ historical position as a bulwark and beacon against censorship and other threats to freedom of expression, freedom of thought, and the free exchange of information and ideas around the globe. At a time when dozens of foreign governments have dramatically stepped up their efforts to censor Internet communications in order to suppress legitimate dissent, to marginalize religious minorities, and to prevent citizens from obtaining information about the world outside their borders,2 the United States has always been a voice –often the only voice –opposing these efforts. Our ability to defend the principle of the single global Internet –the Internet where all of humanity has equal access to knowledge and ideas, the that looks the same to, and allows free and unfettered communication between, users located in Shanghai and Seattle and Santiago, free of
locally -imposed censorship regimes –will be deeply compromised by enactment of S. 3804, which would enshrine in U.S. law for the first time the contrary principle: that all countries have a right to insist on the removal of content, wherever located, from the global Internet in service of the exigencies of local law. Nothing limits the application of this principle to copyright or trademark infringement, and nothing limits the application of this principle to actions by the United States; when all countries exercise this prerogative in support of their local legal regimes, as they surely will, we will have lost –or, more properly speaking, we will have destroyed –the single global inter-connected communications platform that we have built over the past several decades and that holds out so much promise for the improvement of human society across the globe." The PDF of the letter:
http://www.publicknowledge.org/files/docs/LawProfCOICA.pdf The letter of the internet engineers:
..."We, the undersigned, have played various parts in building a network called the Internet. We wrote and debugged the software; we defined the standards and protocols that talk over that network. Many of us invented parts of it. We're just a little proud of the social and economic benefits that our project, the Internet, has brought with it. We are writing to oppose the Committee's proposed new Internet censorship and copyright bill. If enacted, this legislation will risk fragmenting the Internet's global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure. In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties' ability to communicate. All censorship schemes impact speech beyond the category they were int
ended
to restrict, but this bill will be particularly egregious in that regard because it causes entire domains to vanish from the Web, not just infringing pages or files. Worse, an incredible range of useful, law-abiding sites can be blacklisted under this bill. These problems will be enough to ensure that alternative name-lookup infrastructures will come into widespread use, outside the control of US service providers but easily used by American citizens. Errors and divergences will appear between these new services and the current global DNS, and contradictory addresses will confuse browsers and frustrate the people using them. These problems will be widespread and will affect sites other than those blacklisted by the American government. "....
An Open Letter From Internet Engineers to the Senate Judiciary Committee | Electronic Frontier Foundation
http://www.eff.org/deeplinks/2010/09/open-letter Also see Tim Berners-Lee,(the creator of the World Wide Web)
Tim Berners-Lee Comes Out Against COICA Censorship Bill; Shouldn't You? | Techdirt
http://www.techdirt.com/articles/20100927/10290611182/tim-berners-lee-comes-o... Further Links on this issue: These two are my previous posts on this issue & contain contact info:
Stop the #COICA internet #censorship bill (Corrected) #tcot #tlot #s3804 | theneointellectual http://theneointellectual.wordpress.com/2010/09/29/stop-the-coica-internet-ce...
Why #COICA a Internet Censorship bill must be stopped,& what you can do about it. | theneointellectual
http://theneointellectual.wordpress.com/2010/11/19/why-coica-a-internet-censo...
Can Senator Patrick Leahy Actually Provide The Proof That The COICA Censorship Law Is Needed? | Techdirt
http://www.techdirt.com/articles/20110217/01092913147/can-senator-patrick-lea...
Groups Urge Hearing On Online IP Bill - Tech Daily Dose
http://techdailydose.nationaljournal.com/2010/09/groups-urge-hearing-on-onlin...
The Return Of COICA; Because Censorship Is Cool Again | Techdirt
http://www.techdirt.com/articles/20110216/03082713127/return-coica-because-ce...
What Congress Can Learn from the Recent ICE Seizures | Electronic Frontier Foundation
https://www.eff.org/deeplinks/2011/02/what-congress-can-learn-recent-ice-seiz...
Censorship of the Internet Takes Center Stage in "Online Infringement" Bill | Electronic Frontier Foundation
http://www.eff.org/deeplinks/2010/09/censorship-internet-takes-center-stage-o...
Carrying Water for Hollywood | The Weekly Standard
http://www.weeklystandard.com/blogs/carrying-water-hollywood-and-giving-cover...
Ron Wyden Speaks Out Against COICA: We Shouldn't Toss Out The First Amendment Just To Go After A Few Bad Actors | Techdirt
http://www.techdirt.com/articles/20110216/11305113129/ron-wyden-speaks-out-ag...
This is a online web petition,it is still up.
Don't Censor the Net » Stop the COICA Internet Censorship Bill in the Lame Duck Session of Congress!
http://www.dontcensorthenet.com/
The Volokh Conspiracy » Once Again, the Copyright/Trademark Tail Tries to Wag the Internet Dog
http://volokh.com/2010/11/13/once-again-the-copyrighttrademark-tail-tries-to-...
Google criticised in Senate hearing on web blocking - Managing Intellectual Property - February 2011
http://www.managingip.com/Article/2770565/Internet-IP-Archive/Google-criticis... Senate Needs to Rein in Copyright Bill | Center for Democracy & Technology
http://www.cdt.org/blogs/andrew-mcdiarmid/senate-needs-rein-copyright-bill US Senators Propose Bill To Censor Any Sites The Justice Depatement Declares 'Pirate' Sites, Worldwide | Techdirt
http://www.techdirt.com/articles/20100920/12460811083/us-senators-propose-bil... Senators say bill targeting rogue websites will pass this year - The Hill's Hillicon Valley
http://thehill.com/blogs/hillicon-valley/technology/144575-senators-say-rogue...
COICA and the Internet "Ecosystem" | Center for Democracy & Technology
http://www.cdt.org/blogs/david-sohn/coica-and-internet-ecosystem
CDT Protests Bill Requiring Registrars to Enforce Copyright - PCWorld Business Center
http://www.pcworld.com/businesscenter/article/206459/cdt_protests_bill_requir...
American University Intellectual Property Brief » U.S. Senators Continue War On Internet with “Online Infringement” Bill
http://www.ipbrief.net/2010/09/26/u-s-senators-continue-war-on-internet-with-...
BitTorrent is to movies what "bolt-cutters are to stealing bicycles"
http://arstechnica.com/tech-policy/news/2011/02/bittorrent-is-to-movies-what-...
Make Sure “Rogue Websites” Legislation Doesn’t Target Legitimate Companies, Says CEA | Business Wire
http://www.businesswire.com/news/home/20110216007134/en/%E2%80%9CRogue-Websit...
This individual post,(not the other contents of this blog),is released under the Creative Commons 3.0 Share-Alike with attribution License. See here:
http://creativecommons.org/licenses/by-sa/3.0/
COICA,if put into effect,would be both devastating to free speech on the internet,and would wreak havoc on the technology which makes the internet work. To explain the magnitute of the threat that COICA poses to Freedom of Speech,I will first offer a analogy by way of Swiftian satire.Next,I will present a letter written by legal scholars who argue that the bill is brazenly unconstitutional & will eventually be struck down.
What's more,they hint at the possibility that the passage of the bill will undercut the ability of the United States to protect the Free Speech rights of it's own citizens from foreign despots who wish to use copyright infrigement claims to censor Americans.They further add that it will undercut America's ability to defend the human rights of dissidents in foreign countries,( such as Iran). To address the threat to posed to the technological structure of the internet by. COICA I have linked to a letter written by the engineers of the internet .The engineers warn of catastrophic harm to the structure of the internet if the bill is put into effect.Finally I conclude with a list of links for more info. A analogy by way of Swiftian Satire:
Imagine you live in a apartment building with your family.You mind your own business.You harm no one.
Then,one day,you are awakened from your sleep to find your apartment complex being evacuated & bulldozed.
The reason?
The Attorney General has alleged that a pedophile lives in your building;he therefore,quite logically,got a court to order the destruction of the whole building,& the detention of everyone who lives there.
The court order was issued ex parte,(without notification to the other party). You run outside & see the Congressman who sponsored the bill.He is giving a press conference praising his handiwork.
You demand to know why they are demolishing your apartment.The following conversation ensues:
Congressman:"We are fighting pedophilia.Do you oppose fighting pedophilia?"
You:"No!Of course not!But why are you punishing us for the crimes of this one pedophile?And why weren't we warned that a convicted sex offender lived in the building?"
Congressman:"Oh,he's not been convicted yet,merely accused.He may well be innocent."
You:"THEN WHY ARE WE BEING THROWN OUT OF OUR HOMES WITH NO WARNING?!WHY DON'T YOU JUST ARREST HIM?!"
Congressman:"That would be very inconvient for us.Why,we would have to go to the particular indivdual's apartment and arrest him.We much prefer bulldozing the whole structure."
YOU:WHY?!
Congressman:"I'm not sure myself.But we decided on that for some reason."
YOU:"But why are you punishing us for the crimes of this one man?"
Congressman:"Maybe if you didn't want to be evicted,you should not have moved into a apartment complex where a pedophile resides."
YOU:"HOW WERE WE TO KNOW THAT SOMEONE WHO WOULD BE ACCUSED OF BEING A PEDOPHILE WAS LIVING HERE?"
Congressman:"You should have gone door to door conducting background checks.You should have kept a eye on the other apartments for things that are...unusual."
YOU:"I SHOULD HAVE DONE THESE THINGS?!YOU JUST SAID THAT THE GOVERNMENT CAN'T EVEN BE BOTHERED TO TARGET THIS PARTICULAR INDIVIDUAL ,& HAS TO TEAR DOWN THE WHOLE BUILDING!"
Congressman:Yes,but that's different."
YOU:WHY?!
Congressman:"Because we are the Government,you're only a individual."
RRD:In this case of course we are not talking about fighting pedophiles.We are talking about fighting copyright infringement.And in this case people will not be thrown into the streets in the literal,physical,world,but they may have their blogs evicted,en masse,if they have the misfortune to use any number of domains.
Do you have a blog on Wordpress?Blogger?Typepad?Tumblr?All of these represent Domains,of which your blog is only a subdomain,a example would be theneointellectual.wordpress.com,with wordpress.com being the domain,& theneointellectual the sub-domain.The same holds true for Facebook accounts.
Imagine the power to shut down hundreds of thousands of blogs in one fell swoop.Forget for a moment whether you think a particular Attorney General & a particular Judge will abuse such power;should they have it to begin with?
This is what the Law Professors have to say on the matter.
(Their letter has been released under a Creative Commons Share-Alike with Attribution License,see here:
http://creativecommons.org/licenses/by-sa/3.0/
Summary of the Bill:
The current version of the Combating Online Infringements and Counterfeits Act (“COICA,” or “the Act”), S. 3804, would authorize the Attorney General to obtain, upon application to a federal court, injunctions in rem “against the domain name” of any Internet site “dedicated to infringing activities.” An Internet site will be deemed “dedicated to infringing activities” if (a) it is “primarily designed,” has “no demonstrable commercially significant purpose or use other than,” or is “marketed by its operator,” to offer goods and services in violation of the Copyright Act and/or the Lanham Act, and (b) the site “engages in” such infringing activities, and those activities, “taken together,” are “central to the activity” of the site. These injunctions can issue against entities which are not in any way responsible for the unlawful content, but which participate in the global Domain Name System (DNS): (a) the domain name registrar where the
target site’s domain name was registered; (b) the domain name registry responsible for maintaining the authoritative database of names for the target site’s top -level domain; and (c) any of the thousands of “service providers” (i.e., entities “offering the transmission, routing, or providing of connections for digital online communications”) or “operator of a nonauthoritative domain name server” (a category that includes virtually all service providers, and any operator of network linked to the Internet). Registrars and registries subject to the injunction will be required to “suspend operation of,” or “lock,” the specified domain name. Service providers or domain name server operators will be required to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.” Objections to the Bill
The Act, if enacted into law, would fundamentally alter U.S. policy towards Internet speech, and would set a dangerous precedent with potentially serious consequences for free expression and global Internet freedom. To begin with, the Act is an unconstitutional abridgment of the freedom of speech protected by the First Amendment. It directs courts to impose “prior restraints” on speech –the “most serious and the least tolerable infringement on First Amendment rights,” Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976), which are constitutionally permissible only in the narrowest range of circumstances. See Near v. Minnesota, 283 U.S. 697 (1931).; see also Center For Democracy & Technology v. Pappert , 337 F. Supp. 2d 606, 651 (E.D. Pa. 2004) (statute blocking access to particular domain names and IP addresses an unconstitutional prior restraint). The Supreme Court has made it abundantly clear that the category of “prior restraints,” while traditionally app
lied to
“orders forbidding certain communications when issued in advance of the time that such communications are to occur,” Alexander v. United States, 509 U.S. 544, 550 (1993) (emphasis added), also encompasses any governmental action suppressing speech taken prior to “a prompt final judicial decision . . . in an adversary proceeding” that the speech is unlawful. Freedman v. Maryland , 380 U.S. 51, 58-60 (U.S. 1965) (statute requiring theater owner to receive a license before exhibiting allegedly obscene film was unconstitutional because the statute did not “assure a prompt final judicial decision” that the film was obscene); see also Bantam Books v. Sullivan, 372 U.S. 58 (1962) (State Commission’s letters suggesting removal of books already in circulation is a “prior administrative restraint” and unconstitutional because there was no procedure for “an almost immediate judicial determination of the validity of the restraint”); Fort Wayne Books, Inc. v. Indiana
, 489
U.S. 46, 51-63 (1989) (procedure allowing courts to order pre -trial seizure of allegedly obscene films based upon a finding of probable cause was an unconstitutional prior restraint; publications “may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.”). These cases “require a court, before the material is completely removed from circulation, . . . to make a final determination that material is [unlawful] after an adversary hearing.” CDT v. Pappert , 337 F.Supp.2d, at 657 (emphasis added). The procedural seps prescribed by the Act do not come close to comporting with this Constitutional requirement. In place of a final determination after an adversary proceeding that the website in question contain infringing material, the Act permits the issuance of speech -suppressing injunctions without any meaningful opportunity for any party to contest the Attorney General’s allegations of unlawful content .
The
domain name registrars, registries, service providers, and domain name server operators against whom injunctions can be issued pursuant to the Act will have, in virtually all cases, no information whatsoever concerning the allegations regarding the presence of infringing content at the target websites because they have no relationship to the operators of those websites; they are therefore in no position, and they have no conceivable incentive, to contest those allegations. The Act contains no provisions designed to ensure that the persons actually responsible for the allegedly infringing content –the operators of the target websites –are even aware of the proceedings against them, let alone have been afforded any meaningful opportunity to contest the allegations in a true, adversarial proceeding. These target websites, by virtue of the Act’s assertion of in rem jurisdiction over domain names, may (and presumably often will) be located in, and/or controlled by citizens o
f,
other countries; the Act specifically permits courts in these actions to exercise jurisdiction provided only that either: (a) the domain name registrar, or the domain name registry , is located within the United States, or (b) the domain has been accessed by users within the United States, and the website “conducts business directed to the United States” and “harms holders of United States intellectual property rights.” Rather than give these foreign website operators a meaningful opportunity to be heard and to contest the allegations of illegality in an adversarial hearing, the Act requires only that the Attorney General notify the domain name registrant –who may, but in many cases will not, be the operator of the website in question –of an intent to proceed against the site. Injunctions may be entered entirely ex parte , without the participation of any other party, and the Act does not provide for any review of a judge’s ex parte determination that the websit
e in
question contains unlawful material. This falls far short of what the Constitution requires before speech can be eliminated from public circulation. The Act would also suppress vast amounts of protected speech containing no infringing content whatsoever, and is unconstitutional on that ground as well. The current architecture of the Internet permits hundreds or even thousands of independent individual websites to operate under a single domain name by the use of unique sub -domains; indeed, many web hosting services operate hundreds of thousands of websites under a single domain name (e.g., www.aol.com, www.terra.es, www.blogspot.com). By requiring suppression of all sub -domains associated with a single offending domain name, the Act “burns down the house to roast the pig,” ACLU v. Reno , 521 U.S. 844, 882 (1997), failing the fundamental requirement imposed by the First Amendment that it implement the “least restrictive means of advancing a compelling state interest.” ACLU v. Ashcroft , 322 F.3d 240, 251 (3d Cir. 2003) (quoting Sable Commun. v. FCC , 492 U.S. at 126 (emphasis added)); cf. O’Brien , 391 U.S. at 3
77
(even the lower “intermediate scrutiny” standard requires that any “incidental restriction on First Amendment freedoms . . . be no greater than is essential to the furtherance of that interest”); see also CDT v Pappert , 337 F.Supp.2d, at 649 (domain name blocking [“DNS filtering”] resulted in unconstitutional “overblocking” of protected speech whenever “the method is used to block a web site on an online community or a Web Hosting Service, or a web host that hosts web sites as sub -pages under a single domain name,” and noting that one service provider “blocked hundreds of thousands of web sites unrelated to” the targeted unlawful conduct); see also id., at 640 (statute resulted in blocking fewer than 400 websites containing unlawful child pornography but in excess of one million websites without any unlawful material). Precisely because of these egregious Constitutional infirmities, the Act, if enacted into law, will not survive judicial scrutiny, an
d will,
therefore, never be used to address the problem (online copyright and trademark infringement) that it is designed to address. Its significance, therefore, is entirely symbolic –and the symbolism it presents is ugly and insidious. For the first time, the United States would be requiring Internet Service Providers to block speech because of its content –a dramatic retreat from the US’s long-standing policy, implemented in §230 of the Communications Decency Act, §512 of the Copyright Act, and elsewhere, of allowing ISPs to focus on empowering communications by and among users free from the need to monitor, supervise, or play any other gatekeeping or policing role with respect to those communications. It is a policy that has not only helped make the United States the world leader in a wide range of Internet -related industries, but it has also enabled the Internet's uniquely decentralized structure to serve as a global platform for innovation, speech, collaboration, civic
engagement, and economic growth. Even more significant and more troubling, the Act represents a retreat from the United States’ historical position as a bulwark and beacon against censorship and other threats to freedom of expression, freedom of thought, and the free exchange of information and ideas around the globe. At a time when dozens of foreign governments have dramatically stepped up their efforts to censor Internet communications in order to suppress legitimate dissent, to marginalize religious minorities, and to prevent citizens from obtaining information about the world outside their borders,2 the United States has always been a voice –often the only voice –opposing these efforts. Our ability to defend the principle of the single global Internet –the Internet where all of humanity has equal access to knowledge and ideas, the that looks the same to, and allows free and unfettered communication between, users located in Shanghai and Seattle and Santiago, free of
locally -imposed censorship regimes –will be deeply compromised by enactment of S. 3804, which would enshrine in U.S. law for the first time the contrary principle: that all countries have a right to insist on the removal of content, wherever located, from the global Internet in service of the exigencies of local law. Nothing limits the application of this principle to copyright or trademark infringement, and nothing limits the application of this principle to actions by the United States; when all countries exercise this prerogative in support of their local legal regimes, as they surely will, we will have lost –or, more properly speaking, we will have destroyed –the single global inter-connected communications platform that we have built over the past several decades and that holds out so much promise for the improvement of human society across the globe." The PDF of the letter:
http://www.publicknowledge.org/files/docs/LawProfCOICA.pdf The letter of the internet engineers:
..."We, the undersigned, have played various parts in building a network called the Internet. We wrote and debugged the software; we defined the standards and protocols that talk over that network. Many of us invented parts of it. We're just a little proud of the social and economic benefits that our project, the Internet, has brought with it. We are writing to oppose the Committee's proposed new Internet censorship and copyright bill. If enacted, this legislation will risk fragmenting the Internet's global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure. In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties' ability to communicate. All censorship schemes impact speech beyond the category they were int
ended
to restrict, but this bill will be particularly egregious in that regard because it causes entire domains to vanish from the Web, not just infringing pages or files. Worse, an incredible range of useful, law-abiding sites can be blacklisted under this bill. These problems will be enough to ensure that alternative name-lookup infrastructures will come into widespread use, outside the control of US service providers but easily used by American citizens. Errors and divergences will appear between these new services and the current global DNS, and contradictory addresses will confuse browsers and frustrate the people using them. These problems will be widespread and will affect sites other than those blacklisted by the American government. "....
An Open Letter From Internet Engineers to the Senate Judiciary Committee | Electronic Frontier Foundation
http://www.eff.org/deeplinks/2010/09/open-letter Also see Tim Berners-Lee,(the creator of the World Wide Web)
Tim Berners-Lee Comes Out Against COICA Censorship Bill; Shouldn't You? | Techdirt
http://www.techdirt.com/articles/20100927/10290611182/tim-berners-lee-comes-o... Further Links on this issue: These two are my previous posts on this issue & contain contact info:
Stop the #COICA internet #censorship bill (Corrected) #tcot #tlot #s3804 | theneointellectual http://theneointellectual.wordpress.com/2010/09/29/stop-the-coica-internet-ce...
Why #COICA a Internet Censorship bill must be stopped,& what you can do about it. | theneointellectual
http://theneointellectual.wordpress.com/2010/11/19/why-coica-a-internet-censo...
Can Senator Patrick Leahy Actually Provide The Proof That The COICA Censorship Law Is Needed? | Techdirt
http://www.techdirt.com/articles/20110217/01092913147/can-senator-patrick-lea...
Groups Urge Hearing On Online IP Bill - Tech Daily Dose
http://techdailydose.nationaljournal.com/2010/09/groups-urge-hearing-on-onlin...
The Return Of COICA; Because Censorship Is Cool Again | Techdirt
http://www.techdirt.com/articles/20110216/03082713127/return-coica-because-ce...
What Congress Can Learn from the Recent ICE Seizures | Electronic Frontier Foundation
https://www.eff.org/deeplinks/2011/02/what-congress-can-learn-recent-ice-seiz...
Censorship of the Internet Takes Center Stage in "Online Infringement" Bill | Electronic Frontier Foundation
http://www.eff.org/deeplinks/2010/09/censorship-internet-takes-center-stage-o...
Carrying Water for Hollywood | The Weekly Standard
http://www.weeklystandard.com/blogs/carrying-water-hollywood-and-giving-cover...
Ron Wyden Speaks Out Against COICA: We Shouldn't Toss Out The First Amendment Just To Go After A Few Bad Actors | Techdirt
http://www.techdirt.com/articles/20110216/11305113129/ron-wyden-speaks-out-ag...
This is a online web petition,it is still up.
Don't Censor the Net » Stop the COICA Internet Censorship Bill in the Lame Duck Session of Congress!
http://www.dontcensorthenet.com/
The Volokh Conspiracy » Once Again, the Copyright/Trademark Tail Tries to Wag the Internet Dog
http://volokh.com/2010/11/13/once-again-the-copyrighttrademark-tail-tries-to-...
Google criticised in Senate hearing on web blocking - Managing Intellectual Property - February 2011
http://www.managingip.com/Article/2770565/Internet-IP-Archive/Google-criticis... Senate Needs to Rein in Copyright Bill | Center for Democracy & Technology
http://www.cdt.org/blogs/andrew-mcdiarmid/senate-needs-rein-copyright-bill US Senators Propose Bill To Censor Any Sites The Justice Depatement Declares 'Pirate' Sites, Worldwide | Techdirt
http://www.techdirt.com/articles/20100920/12460811083/us-senators-propose-bil... Senators say bill targeting rogue websites will pass this year - The Hill's Hillicon Valley
http://thehill.com/blogs/hillicon-valley/technology/144575-senators-say-rogue...
COICA and the Internet "Ecosystem" | Center for Democracy & Technology
http://www.cdt.org/blogs/david-sohn/coica-and-internet-ecosystem
CDT Protests Bill Requiring Registrars to Enforce Copyright - PCWorld Business Center
http://www.pcworld.com/businesscenter/article/206459/cdt_protests_bill_requir...
American University Intellectual Property Brief » U.S. Senators Continue War On Internet with “Online Infringement” Bill
http://www.ipbrief.net/2010/09/26/u-s-senators-continue-war-on-internet-with-...
BitTorrent is to movies what "bolt-cutters are to stealing bicycles"
http://arstechnica.com/tech-policy/news/2011/02/bittorrent-is-to-movies-what-...
Make Sure “Rogue Websites” Legislation Doesn’t Target Legitimate Companies, Says CEA | Business Wire
http://www.businesswire.com/news/home/20110216007134/en/%E2%80%9CRogue-Websit...
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http://creativecommons.org/licenses/by-sa/3.0/
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