The good news? If Ed’s post last week about the COICA bill pending in Congress had you worried, you can rest easy. A day after he posted that, Democrat Ron Wyden vowed that he’d put a hold on the bill unless major changes were made. That means it’s dead in the lame-duck session, and with more Republicans in the Senate come January, conservative opponents of COICA will have a bit more leverage next year to kill it outright.
The bad news? Turns out that the feds don’t need COICA to seize domain names after all.
Federal authorities have shut down more than 70 websites in one the broadest actions yet against companies the government suspects of selling counterfeit or pirated products.
Visitors to the affected sites–which offer such diverse goods as scarves, golfing gear and rap music–are greeted with a notice stating their domain names have been seized by U.S. Immigration and Customs Enforcement. The notice cites penalties for willful copyright infringement and trafficking in counterfeit goods…
Peter Eckersley, senior staff technologist at the San Francisco-based Electronic Frontier Foundation, said he had heard reports that some domain names had been seized without giving their owners a chance to make a case that their operations are legitimate. “Any time you are going to take a site down, and potentially put a business out of business, they should have an opportunity to represent themselves before that happens,” he argued.
Under a law called the Digital Millennium Copyright Act, websites can typically avoid legal liability for copyright infringement for video or music that users post on their sites if they take it down upon the request of copyright holders.
Quoth the owner of Torrent-Finder, “My domain has been seized without any previous complaint or notice from any court!” Can the feds do that? Well, if you follow the last link and look at the notice they’re posting on the seized sites, it refers you to 18 U.S.C. 981 and 18 U.S.C. 2323. Section 2323 basically says that property is subject to civil forfeiture to the government if you’re using it for the purpose of willful copyright infringement. Section 981(b) lays out the rules the feds need to follow to get court approval for the seizure: In most cases, it’s the same as it is to get a search warrant under Rule 41 of the Federal Rules of Criminal Procedure. Section 981(b)(3) lets the property owner challenge the seizure by filing a motion with the court that issued the warrant (as does FRCrP 41(g)) — but not until after your domain’s already been taken over and knocked offline. In which case … how is this significantly different from COICA? After all, one of Ed’s concerns in last week’s post was that website operators should have a right to be heard by a judge before their sites are nuked. The financial risk to an online business from being seized erroneously is simply too great to let the feds act first; better to suspend seizures until after there’s been a trial, when we know for sure per a jury’s verdict that infringement actually occurred. And yet that’s not what our current scheme provides. COICA may be worse, but from what I can tell from my exceedingly limited knowledge of the statutes here, “seize first, ask questions later” appears to be the current policy as well.
Which raises the question: How much worse is COICA? Wired tried to explain it this way:
Among the sites that could go dark if the law passes: Dropbox, RapidShare, SoundCloud, Hype Machine and any other site for which the Attorney General deems copyright infringement to be “central to the activity” of the site, according to Electronic Frontier Foundation, a digital rights group that opposes the bill. There need not even be illegal content on a site — links alone will qualify a site for digital death. Websites at risk could also theoretically include p2pnet and pirate-party.us or any other website that advocates for peer-to-peer file sharing or rejects copyright law, according to the group.
Again, I’m not sure how different this is from the current framework. One of the complaints at the site Torrent Freak, in fact, is that the Torrent-Finder site that was knocked offline yesterday essentially is just a big search engine directing you to other torrent sites. Section 2323, though, already says that your property is subject to forfeiture if you’re using it to “facilitate” willful copyright infringement, so in theory, yeah, merely posting links to other infringers should count. The deeper issue here is why Torrent-Finder gets nuked while a site like YouTube, which hosts plenty of infringing content on its own servers, only has to deal with takedown notices for individual files under the DMCA. Presumably it’s because there’s already a de facto standard being used about whether infringement is “central” to the site’s activity: Lots of people use YouTube to upload their dopey homemade cat videos or whatever, but if you’re messing around at Pirate Bay, chances are you’re looking for something that might otherwise cost money to see. The potential problem with COICA, then, is that by codifying a “too much piracy” test, it might encourage the feds to expand the hazy standard they’re already basically using.
There are other reasons to oppose COICA — for instance, it would block credit card companies and ad networks from doing business with a targeted site — but the “seize first, ask questions later” approach is what seems to be most troubling to people and yet here we are already seeing that in action. Have I gone wrong here somehow, copyright lawyers? I’m an almost complete IP amateur, so if I’ve confused something, please e-mail/comment and I’ll update.
Update: Belated exit question: After a huge midterm backlash to big government and a high profile “don’t touch my junk” TSA rebellion online, is this really the best moment politically for the feds to start grabbing people’s domain names?