User:Pdmoore/Combating Online Infringement and Counterfeits Act

Unites States Senate Bill S.3804, known as the Combating Online Infringement and Counterfeits Act is a bill introduced by Senator Patrick Leahy (D-VT) on September 20th, 2010. It proposes amendments to Chapter 113 of title 18 of the United States Code which would, if passed, allow 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."^[1] This would, in effect, allow the Federal Government to create a blacklist of domain names.

The bill is supported by the Motion Picture Association of America, the US 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.^[2]

The bill is opposed by the Center for Democracy & Technology, the Electronic Frontier Foundation, and the Distributed Computing Industry Association.^[3]

The bill is currently scheduled for hearing before the Senate Judiciary Committee.^[4]

The text of the bill defines an infringing website as one that is:

. . .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 . . . 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. . . or . . .to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d)of the Trademark Act of 1946, and such activities are central to the activity of the Internet site or sites accessed through a specific domain name."

The bill, if passed, would allow the Attorney General to bring an in rem 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:

Upon receipt of such order, the domain name registrar or domain name registry shall suspend operation of, and lock, the domain name.^[5]

Should the infringing website not be located in the United States, 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:

(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;^[6]

(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--^[7]

(I) its service from processing transactions for customers located within the United States based on purchases associated with the domain name; and^[8]

(II) its trademarks from being authorized for use on Internet sites associated with such domain name; and^[9]

(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.^[10]

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 personam action against the party in question.

Public reaction to the bill has been overwhelmingly negative, as it is perceived to threaten Net Neutrality in the United States. The announcement of the bill was rapidly followed by a wave of protest from digital rights groups, including the Electronic Frontier Foundation^[11], including at least one online petition to stop the bill.^[12]. News quickly spread to major BitTorrent tracker websites such as Demonoid^[13].

On September 30th, 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.^[14]

• Text of S.3804
• Electronic Frontier Foundation