Tuesday, October 05, 2010

Footnote to the preceding

On a somewhat brighter note, Senate progress on the misnamed Combating Online Infringements and Counterfeits Act (COICA) has been put off until after the election. While that doesn't mean the bill has been defeated, it does mean that the chances of doing so, at least for this Congress, have clearly improved.

The bill, introduced by Pat Leahy on September 20, was scheduled for a markup session just one week later. This rush to judgment was stalled when staffers realized the Senate would likely adjourn before that meeting could begin.

The reason this is good news is that the bill is, as EFF labels it, "an Internet censorship bill" that would empower the DOJ to hinder or even ban access to websites on lists it would compile. More specifically, EFF explains, it
would 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. The bill would also create two Internet blacklists. The first is a list of all the websites hit with a censorship court order from the Attorney General. The second, more worrying, blacklist is a list of domain names that the Department of Justice determines — without judicial review — are "dedicated to infringing activities." The bill only requires blocking for domains in the first list, but strongly suggests that domains on the second list should be blocked as well by providing legal immunity for Internet intermediaries and DNS operators who decide to block domains on the second blacklist as well. (It's easy to predict that there will be tremendous pressure for Internet intermediaries of all stripes to block these "deemed infringing" sites on the second blacklist.) ...

[T]he DMCA [the Digital Millennium Copyright Act of 1996] already gives copyright owners legal tools to remove infringing material piece-by-piece, and to obtain injunctions requiring ISPs to block certain offshore infringing websites. The misuse of the existing DMCA provisions have had a tremendously damaging impact on fair use and free expression. By comparison, COICA streamlines and vastly expands this; it would allow the AG to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it's not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.
The way the bill would work is by interfering with the net's domain name system, or DNS. When you enter a web address in your browser, the DNS translates it into the form the system uses and tells your browser where that address can be found. Under the bill, the DNS in effect would have to tell your browser "ya can't get theah from heah."
Generally speaking[, EFF's legislative analysis says,] the bill forces all the Internet "middlemen" to act as if a part of the Internet doesn't exist, even though that page may otherwise be completely available and accessible.
As the group notes, if the bill passes the list of targets could conceivably include hosting websites (because in the absence of a takedown notice they don't police files, so the DOJ could decide there is "too much" piracy, making that "central" to their business), MP3 blogs and mashup sites (because the DOJ, under expected pressure from the RIAA, could declare such mashups are not "fair use"), and sites that advocate for p2p technology and/or piracy (because, while there is a great deal of Constitutionally-protected speech there, posts on the sites regularly link to tools and information potentially useful in piracy, and DOJ could decide that piracy is therefore "central" to the site's purpose).
Indeed[, EFF says,] had this bill been passed five or ten years ago, YouTube might not exist today. In other words, the collateral damage from this legislation would be enormous.

There are already laws and procedures in place for taking down sites that violate the law. This act would allow the Attorney General to censor sites even when no court has found they have infringed copyright or any other law.
And even where a site had violated the law, it would apply a bludgeon rather than a scalpel, smashing the legal along with the illegal. This bill is a really bad idea.

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