Battling rogue websites with new regulations

Rick Carnes, Songwriters Guild of AmericaLast November the Senate Judiciary Committee passed the "Combating Online Infringement and Counterfeits Act" (COICA) by a bipartisan vote of 19-0. The bill specifically targets "rogue" websites, often outside the jurisdiction of the United States, that are selling counterfeit drugs, fake logo items such as bags, athletic clothing, sunglasses, software, and purses, and--very importantly--illegal copies of movies and music. It's about time.

In describing his goals for the proposed law, Committee Chairman Sen. Patrick Leahy (D-Vt.) explained: "Rogue websites are essentially digital stores selling illegal and sometimes dangerous products. If they existed in the physical world, the store would be shuttered immediately and the proprietors would be arrested." 

For websites with foreign-registered domains, COICA would empower courts to order real actions to hurt the thieves. The courts could tell U.S. ISPs to block user access to the rogue sites if the websites harm American copyright and trademark holders. The courts could seize the advertising accounts of ad-servers that sell context-based ads to these rogue websites. Services like Google's Adwords would be at risk of losing the advertising revenues made from sites like The Pirate Bay (a system vividly portrayed by independent filmmaker Ellen Seidler in her short film, "Pirates, Google, and DMCA"). Credit card companies also couldn't do business with the sites without risking court-ordered seizure of the accounts and other legal entanglements.

When rogue websites operate offshore in countries with weak or non-existent copyright laws, there is little protection for U.S. creators.

Of course, no solution is without critics. Some, like The Electronic Frontier Foundation claim that rules are already in place for taking down sites that break the law.  But the current remedies are almost totally ineffective. When rogue websites operate offshore in countries with weak or non-existent copyright laws, there is little protection for U.S. creators. The difficult-to-enforce DMCA notice and take down provisions require online service providers to act against infringing content if they are notified of infringement by a copyright holder. But this procedure is useless if the sites are housed outside U.S. jurisdiction. Even inside the U.S., it's very tough to enforce for individual creators who don't have the time or money to spend each new day running down illegal postings.

Other critics, like the public interest group Public Knowledge, claim that shutting down of pirate websites by the U.S. will give foreign regimes an excuse for blocking legal Web activity. "However good the justifications may be that we can make for blocking DNS requests, or other information transfers, other countries will point to our example and provide their own justifications for their own blocking," they argue. It's true that a repressive regime might block legitimate sites like Twitter and Facebook, as Iran has done. It's a stretch to think dictators around the world are holding back such misdeeds until the U.S. blocks a site run by thieves. Throughout history tyrants have always found flimsy excuses to crush dissent.  

On the fringes of the debate there are those who make a very radical indictment of the U.S. Attorney General and the U.S. District Courts by saying that if COICA becomes law the U.S. government will use it to repress freedom of speech in this country. David Ulevitch, founder and CEO of OpenDNS states that, "The legislation being considered is about the U.S. Government acting as the police force on behalf of the entertainment industry. If passed it could have far-reaching consequences on the Internet in the form of censorship, instability and economic damages." Give me a break.

COICA is not a perfect solution. Even though the Web address of the rogue site is being blocked, the actual site is still left fully intact. Site owners can sign up for a new DNS entry after the original is blocked, and the site (with all of its content) will then be up and running again.  But the time and expense related to constant address switches and the need to notify users of the new Web address should  make the illegal activities less profitable and, therefore, less prevalent. That makes COICA a good start.

It's time for government to take a stand. It is in the interest of all her citizens, as stated in the U.S. Constitution, to protect and thereby promote, the art, the science, and the culture of America. If COICA becomes law, the U.S. Attorney General will have more tools to guard U.S. creators on the Internet and protect at least some of the $58 billion that global online theft robs from our economy. That would be good news for the all the millions of workers across all of the intellectual property industries in the United States.

Rick Carnes is President of the Songwriters Guild of America and an advisor to Arts+Labs, a collaboration between technology and creative communities.

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