the last couple weeks, there’s been a proposed law bouncing
around Congress named the Combating Online Infringement and
Counterfeits Act (COICA), which would authorize the federal
Department of Justice to block any website that was determined
to be “primarily designed” and “has no demonstrable, commercially
significant purpose or use other than” to promote copyright
and trademark infringement.
The bill would allow the feds to generate a blacklist of domain
names and forbid your ISP from transmitting sites associated
with that domain name to you. Mostly, this appears to be aimed
at foreign sites that are now beyond the reach of U.S. law;
operators of websites in the United States can be and are
simply sued for infringement, so COICA is not about homegrown
sites. Rather COICA would allow a block, at our borders, of
websites that the feds convince a court is dedicated to infringement.
Note that the law doesn’t target the operators of foreign
sites or even the content of the sites that are out of U.S.
jurisdiction—it just allows U.S. users’ access to those sites
to be blocked.
I wasn’t paying a whole lot of attention to this because I’ve
been insanely busy with other stuff, and because the reports
I’d been reading indicated that COICA wasn’t likely to get
through our profoundly-dysfunctional-and-getting-worse Congress.
But it was irksome. The law would give the government sweeping
powers that would change the landscape of the Internet in
the United States. You know how we all click our tongues dismissively
when we learn that some Asian country has blocked YouTube
or Facebook or Google? That’s the arena we’d be getting into.
Take this COICA law, add a Christianista/Tea Party executive
branch and a bunch of Federalist Society judges, and voila,
you’ve got a sanitized Internet.
Looked at another way, if you consider a web domain to be
like a newspaper, a television station, or any other media
outlet, then this law condones outright censorship. Period.
Last week, COICA was passed unanimously by the Senate
Judiciary Committee, after the MPAA, the RIAA, Nike, Nintendo,
the U.S. Chamber of Commerce, unions, media and everybody
else in the business world landed on the members with a bunch
of ginned-up statistics and horror stories. These fine American
business interests also took special care to brand anyone
opposing the bills as un-American coddlers of online thieves.
So, which senators voted for the bill? Well, folks like Jeff
Sessions, Tom Coburn and John Kyl. And folks like Al Franken,
Dianne Feinstein and Chuck Schumer.
Wha? Really? Still, most commentators were saying the bill
would likely not get through the entire Senate and certainly
wouldn’t make it through the House. So, OK, maybe all these
senators were just quietly making sure that their corporate
contributors were placated on a vote that ultimately was meaningless.
But Al Franken?
Anyway, on the heels of this vote came news late last week
that the Department of Homeland Security had seized more than
80 domains that were suspected of infringing activity. This
caused a huge WTF all over the blogosphere because nobody
could figure out (1) how the hell DHS did it, and (2), since
they did it, why we needed COICA. And then there’s the persistent
question we’ve talked about here before: Just what the hell
is Homeland Security doing chasing music-file sharers and
handbag counterfeiters when there are people out there who
really want to blow us up?
The dust hasn’t really settled yet, but this seems to be the
story so far: DHS hired a private contractor to figure out
a way to convince a judge to order the “seizure” of a bunch
of domain names that pointed to a bunch of sites that appeared
to have something to do with infringement. The sites that
were seized were all .com and .net domains, and there was
jurisdiction because the company that oversees .com and .net
sites, Verisign, is a U.S. company. Verisign chose not to
fight the court orders. Adios, domains! Many of the foreign
companies that lost domains have already adopted .info sites
and have continued operating, apparently out of the jurisdiction
of the court order.
Questions remain, though, because some of the sites, particularly
a couple of music sites, don’t appear to be primarily involved
with infringement. In fact, two of them, the hip-hop blogs
RapGodFathers and Onsmash, regularly post tracks and mix tapes
at the request of artists and labels. I’m guessing
DHS didn’t tell the judge that.
But the bottom line is that government is helping business
by restricting speech. Where I come from, that’s a hallmark