Monday, December 6, 2010

S. 3804 Combating Online Infringement and Counterfeit Act (COICA)

This is pending legislation that would give the U.S. Government (more specifically, the Attorney General) authority to shut down a website or domain (foreign or domestic) allegedly because the website is engaging in activities that the government considers copyright infringement (file sharing).

The bill sounds good on the outside, I mean after all, copyright infringement is a crime. Oh wait, IT IS ALREADY A CRIME!!!! So why do we need another law against it, this one giving precedent setting powers to the federal government?

Here is a link to the pending legislation:

The interesting parts, aside from the government being able to shutdown a web domain for violating the law is the powers it gives the Attorney General:

Rule of Consturction - The authority granted the Attorney General under paragraph (1) shall be the sole legal remedy for enforcing the obligations under this section of any entity described in subsection (e).

"Sole Remedy" sounds nothing like "due process", but that's just me. Here is another tid-bit...

(i) Savings Clause-
(1) IN GENERAL - Nothing in this section shall be construed to limit or expand civil or criminal remedies available to any person (including the United States) for infringing activities on the Internet pursuant to any other Federal or State Law.
(2) VICARIOUS OR CONTRIBUTORY LIABILITY- Nothig in this section shall be construed to enlarge or diminish vicarious or contributory liability for any cause of action available under title 17, United States Code, including limitations on liability under section 512 of such title 17

That essentially states that this law does not preclude victims of copyright infringement from pursuing further legal remedy as allowed by law. It just gives the government, that bastion of integrity, the champion of fiscal soundness, the former voice of the people, the power, unprecedented power, to shutdown websites that it deems "dedicated to infringing activities" both domestically (inside the U.S. and abroad).

It says that "dedicated to infringing activities" means, among other things:

1) an Internet site is 'dedicated to infringing activities' if such site--
(A) is otherwise subject to civil forfeiture to the United States Government under section 2323 of title 18, United States Code; or...

That refers to the laws that already exist to punish offenders. Text at the following link, of section 2323:

(1) Property subject to forfeiture.— The following property is subject to forfeiture to the United States Government:
(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17 or section 2318, 2319, 2319AA, 2319B, or 2320, or chapter 90section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A)
Of interest is the cited section, 506, which states:
(2) Evidence. - For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

Evidence of committing the offense is not enough to establish intent!!! However, with this new proposed law, the government wants to have the simple crime of commission, be evidence enough to justify shutting down websites, upon request of the Attorney General. So much for due process... Where does it go from here?

While copyright infringement is a civil matter, with laws existing for recourse to the victims of this crime, for prosecution and restitution, somehow the government feels it needs to create a new series of laws which establishes it HAS the powers to shutdown websites, for what it feels are good reasons, even though civil cases are not generally under the purview of the Attorney General. Free speech, 1st Amendment, and internet cencorship (something our government criticizes other nations for, by the way) is what this amounts to, and what is at stake.

Oh, and here are the Senators that voted for this in committee, for letter writing and future voting purposes:

  • Patrick J. Leahy -- Vermont
  • Herb Kohl -- Wisconsin
  • Jeff Sessions -- Alabama
  • Dianne Feinstein -- California
  • Orrin G. Hatch -- Utah
  • Russ Feingold -- Wisconsin
  • Chuck Grassley -- Iowa
  • Arlen Specter -- Pennsylvania
  • Jon Kyl -- Arizona
  • Chuck Schumer -- New York
  • Lindsey Graham -- South Carolina
  • Dick Durbin -- Illinois
  • John Cornyn -- Texas
  • Benjamin L. Cardin -- Maryland
  • Tom Coburn -- Oklahoma
  • Sheldon Whitehouse -- Rhode Island
  • Amy Klobuchar -- Minnesota
  • Al Franken -- Minnesota
  • Chris Coons -- Delaware

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