Combating Online Infringement and Counterfeits Act
Encyclopedia
United States Senate Bill S.3804, known as the Combating Online Infringement and Counterfeits Act (COICA) was a bill
introduced by Senator Patrick Leahy
(D-VT) on September 20, 2010. It proposes amendments to Chapter 113 of Title 18 of the United States Code that would authorize the Attorney General
to bring an in rem
action against any domain name
found "dedicated to infringing activities", as defined within the text of the bill. Upon bringing such an action, and obtaining an order for relief, the registrar of, or registry affiliated with, the infringing domain would be compelled to "suspend operation of and lock the domain name."
The bill is supported by the Motion Picture Association of America
, the U.S. Chamber of Commerce, the Screen Actors Guild
, Viacom
, and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States
.
It is opposed by organizations and individuals such as Center for Democracy and Technology
, the Electronic Frontier Foundation
, the Distributed Computing Industry Association, Tim Berners-Lee
, the American Civil Liberties Union
and Human Rights Watch
.
The bill passed the Senate Judiciary Committee with a vote of 19-0 but never received a full vote on the Senate floor. Senator Ron Wyden
(D-OR) announced he would take the steps necessary to halt COICA so it is not enacted into law this year, and was successful, effectively killing this bill and requiring it to be resubmitted and for it to make it through a new committee again in 2011 with a different makeup of its members. The Act has since been rewritten as the Protect IP Act
.
action against the infringing domain name in United States District Court
, and seek an order requesting injunctive relief. If granted, such an order would compel the registrar of the domain name in question to take the following actions:
, the bill empowers the Attorney General to bring a similar action in the United States District Court for the District of Columbia
. Should an order for injunctive relief be granted, the Attorney General would then be empowered to serve said order upon, and compel to perform the actions listed:
action against the party in question.
.
On September 30, 2010, the EFF
posted an update to their Deeplinks Blog, announcing that the hearing before the Senate Judiciary Committee had been delayed until after the 2010 midterm elections. On November 18, 2010, the Senate Judiciary Committee unanimously approved the bipartisan bill. On November 26, 2010, the New York Times reported that the U.S. government had seized the domain names of 82 websites, which digital rights advocates used as an example of overreaching enforcement that can already occur under current law, which they believe will take place more frequently and on a broader basis under the more lenient enforcement requirements set by COICA.
opposed the bill after it passed the Senate Judiciary Committee on November 18, 2010, saying that unless it is changed, he will prevent it from coming to a vote on the full Senate floor this year. He said:
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
introduced by Senator Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
(D-VT) on September 20, 2010. It proposes amendments to Chapter 113 of Title 18 of the United States Code that would authorize the Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
to bring an in rem
Jurisdiction in rem
In rem is a legal term describing the power a court may exercise over property or a "status" against a person over whom the court does not have "in personam jurisdiction"...
action against any domain name
Domain name
A domain name is an identification string that defines a realm of administrative autonomy, authority, or control in the Internet. Domain names are formed by the rules and procedures of the Domain Name System ....
found "dedicated to infringing activities", as defined within the text of the bill. Upon bringing such an action, and obtaining an order for relief, the registrar of, or registry affiliated with, the infringing domain would be compelled to "suspend operation of and lock the domain name."
The bill is supported by the Motion Picture Association of America
Motion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
, the U.S. Chamber of Commerce, the Screen Actors Guild
Screen Actors Guild
The Screen Actors Guild is an American labor union representing over 200,000 film and television principal performers and background performers worldwide...
, Viacom
Viacom
Viacom Inc. , short for "Video & Audio Communications", is an American media conglomerate with interests primarily in, but not limited to, cinema and cable television...
, and the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States
International Alliance of Theatrical Stage Employes
The International Alliance of Theatrical Stage Employees, or I.A.T.S.E., is a labor union representing technicians, artisans and craftspersons in the entertainment industry, including live theatre, motion...
.
It is opposed by organizations and individuals such as Center for Democracy and Technology
Center for Democracy and Technology
The Center for Democracy & Technology is a Washington, D.C. based 501 non-profit public-interest group that works to promote an open, innovative and free Internet....
, the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
, the Distributed Computing Industry Association, Tim Berners-Lee
Tim Berners-Lee
Sir Timothy John "Tim" Berners-Lee, , also known as "TimBL", is a British computer scientist, MIT professor and the inventor of the World Wide Web...
, the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
and Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
.
The bill passed the Senate Judiciary Committee with a vote of 19-0 but never received a full vote on the Senate floor. Senator Ron Wyden
Ron Wyden
Ronald Lee "Ron" Wyden is the senior U.S. Senator for Oregon, serving since 1996, and a member of the Democratic Party. He previously served in the United States House of Representatives from 1981 to 1996....
(D-OR) announced he would take the steps necessary to halt COICA so it is not enacted into law this year, and was successful, effectively killing this bill and requiring it to be resubmitted and for it to make it through a new committee again in 2011 with a different makeup of its members. The Act has since been rewritten as the Protect IP Act
Protect IP Act
The PROTECT IP Act is a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to infringing or counterfeit goods", especially those registered outside the...
.
Definition of infringement
The text of the bill defines an infringing website as one that is:(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer:
(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or
(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled 'An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes', approved July 5, 1946 (commonly referred to as the 'Trademark Act of 1946' or the 'Lanham Act'; (d)); and
(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.
Powers granted
The bill, if passed, would allow the Attorney General to bring an in remJurisdiction in rem
In rem is a legal term describing the power a court may exercise over property or a "status" against a person over whom the court does not have "in personam jurisdiction"...
action against the infringing domain name in United States District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
, and seek an order requesting injunctive relief. If granted, such an order would compel the registrar of the domain name in question to take the following actions:
Upon receipt of such order, the domain name registrar or domain name registry shall suspend operation of, and may lock, the domain name.
Nondomestic domains
If the infringing website is not located in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the bill empowers the Attorney General to bring a similar action in the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
. Should an order for injunctive relief be granted, the Attorney General would then be empowered to serve said order upon, and compel to perform the actions listed:
(i) a service provider, as that term is defined in section 512(k)(1) of title 17, United States Code, or other operator of a domain name system server shall take reasonable steps that will prevent a domain name from resolving to that domain name's Internet protocol address;
(ii) a financial transaction provider, as that term is defined in section 5362(4) of title 31, United States Code, shall take reasonable measures, as expeditiously as practical, to prevent--
(I) its service from processing transactions for customers located within the United States based on purchases associated with the domain name; and
(II) its trademarks from being authorized for use on Internet sites associated with such domain name; and
(iii) a service that serves contextual or display advertisements to Internet sites shall take reasonable measures, as expeditiously as practical, to prevent its network from serving advertisements to an Internet site accessed through such domain name.
Enforcement
Should a party fail to comply with an order served upon it by the Attorney General, the Attorney General would be able to bring an in personamIn personam
In personam is a Latin phrase meaning "directed toward a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called...
action against the party in question.
Justice Department lists
The bill also calls for the creation, by the Justice Department, of two publicly available lists of domain names. The first list shall be constituted of domain names against which the Attorney General has obtained injunctions. Domestic domains would be required to be locked by their registrars, and service providers, financial institutions, and advertisers would be required to block service to any nondomestic domains on this list. The second list would be a list of domains alleged by the Justice Department to be infringing, but against which no action had been taken. Any service provider who willingly took steps to block access to sites on this second list would gain immunity from prosecution under this bill.Proposed amendment to COICA
Due to various concerns from outside parties, Senator Patrick Leahy has proposed an amendment to the legislation that responds to these concerns, while preserving the purpose of the legislation. The amendment will:- Strike provisions that would have authorized the Justice Department to publish a listing of domain names that provided access to websites dedicated to infringing activities, but against which it did not to seek a court order under the Act, in response to concerns from Internet service providers (ISPs), online companies, and public interest groups.
- Ease the burden on ISPs and payment processors that are required to take action pursuant to this Act. The amendment specifies that an ISP shall not be required to modify its network or facilities to comply with an order or take steps with respect to domain name lookups performed by others. In addition, the amendment requires only that ISPs and payment processors act as expeditiously as reasonable.
- Provide more explicit protection from legal liability for any third-party registrar, registry, ISP, payment processor or advertising network that takes action pursuant to this Act.
- Require the Attorney General to develop a process in consultation with other law enforcement agencies to coordinate related investigations.
Public reaction
Public reaction to the bill has been negative by consumer groups while the bill is generally lauded by artist's rights groups, various labor unions, and the entertainment and publishing industries. The announcement of the bill was rapidly followed by a wave of protest from digital rights activists, including the Electronic Frontier FoundationElectronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
.
On September 30, 2010, the EFF
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
posted an update to their Deeplinks Blog, announcing that the hearing before the Senate Judiciary Committee had been delayed until after the 2010 midterm elections. On November 18, 2010, the Senate Judiciary Committee unanimously approved the bipartisan bill. On November 26, 2010, the New York Times reported that the U.S. government had seized the domain names of 82 websites, which digital rights advocates used as an example of overreaching enforcement that can already occur under current law, which they believe will take place more frequently and on a broader basis under the more lenient enforcement requirements set by COICA.
Senate opposition
Oregon Democratic Senator Ron WydenRon Wyden
Ronald Lee "Ron" Wyden is the senior U.S. Senator for Oregon, serving since 1996, and a member of the Democratic Party. He previously served in the United States House of Representatives from 1981 to 1996....
opposed the bill after it passed the Senate Judiciary Committee on November 18, 2010, saying that unless it is changed, he will prevent it from coming to a vote on the full Senate floor this year. He said:
-
- "It seems to me that online copyright infringement is a legitimate problem, but it seems to me that COICA as written is the wrong medicine. Deploying this statute to combat online copyright infringement seems almost like using a bunker-busting cluster bomb when what you really need is a precision-guided missile. The collateral damage of this statute could be American innovation, American jobs, and a secure Internet."
Related treaties and laws
- Anti Counterfeiting Trade Agreement
- Digital Millennium Copyright ActDigital Millennium Copyright ActThe Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
- Protect IP ActProtect IP ActThe PROTECT IP Act is a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to infringing or counterfeit goods", especially those registered outside the...