U.S. to escalate War on Piracy at domain name level

Back in July we reported about a new strategy by American copyright enforcement authorities against websites considered to be pirating. “Operation In Our Sites” (notice the clever pun, or play of words) revoked the domain name registration of several sites engaged in copyright infringement. At the time, several people commented that this was not likely to have any effect on piracy as a whole, as it only covered websites with domain names registered in the United States. This type of measure does not affect IP addresses either, so a website could still operate by being hosted outside of the U.S. and making sure its users found the IP address to the server.

Seems like U.S.  legislators noticed the limited scope of such measures as well. This is why there is a new proposed Bill, the Combating Online Infringement and Counterfeits Act, which in my opinion will make the DMCA look like a minor administrative decree. I guess we can call the new act the COICA (remove the Infringement and you get an amusing acronym, sorry, feeling rather puerile today). COICA will take over where “In Our Sites” left off. The main purpose of the Bill is to overhaul the civil injunction system in copyright law. The law will create new injunctive relief whereby a court of law can order the registrar of a domain name issued in the United States to temporarily or permanently remove the domain from a site dedicated to infringing activities, including copyright infringement and counterfeiting. The site must be primarily dedicated to commercially pursuing the sale of counterfeit goods, or the illegal downloading of copies of copyright works. Upon receipt of an order of removal, registrars must suspend the operation of the domain and lock it.

So far so good. This would seem to be easily circumvented by moving a site to a different country. But there is more. The law also has significant international implications because it is designed specifically with foreign domains in mind. If the domain registry or registrar is located outside of the U.S., then action can be brought in the District of Columbia to establish jurisdiction and to stop the importation of goods into the U.S. in the case of sales of counterfeit or physical infringing items. This can be done with three conditions:

“(i) the domain name is used to access such Internet site in the United States; and
(ii) the Internet site–

(I) conducts business directed to residents of the United States; and
(II) harms intellectual property rights holders that are residents of the United States.”

This will probably mean every infringing site in the world could be subject to the law, all that is needed is that it infringes the rights of any U.S. resident, of which there are plenty. What seems interesting about COICA is who will be served with orders once a court has issued the injunction. For domestic registrars, this will obviously be the U.S. based registrar, and as stated above, upon receipt of an order of removal registrars must suspend the operation of the domain and lock it. But what happens if the site was registered abroad? This is where the law has teeth! The orders attack Internet service providers, financial entities and advertisers:

“(B) REQUIRED ACTIONS- Upon receipt of a court order issued pursuant to this section–

(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.”

Just imagine your average torrent tracker site (*cough*piratebay*cough*). Let’s say the order is presented against a U.S. ISP, say Verizon, they will have to make sure that the domain “thepiratebay.org” cannot be rendered in the U.S., much like CleanFeed and the Australian firewall intend to do. This would generate an American firewall with infringement at its core. Then take the financial restrictions. Any site that accepts donations via PayPal or Google Checkout would be affected, as the order could be given to PayPal or Google to freeze those accounts. The same would happen with Google and Adwords or any other context-related advertisement scheme. In other words, what this law is trying to do is to completely destroy the income generation of infringing sites.

Some may not see this as a bad thing, but I am deeply worried for various reasons. Firstly, the U.S. still dominates in the domain name arena, as it has almost 60% of all registrars. But also, I am concerned that what this system is creating is a very powerful and wide-ranging content firewall around the United States. So far, they want to use it against infringement, but once in place, it could be easily used against other websites. What would stop them from issuing an order against WikiLeaks? There is a ton of infringing material there! Imagine if the WikiLeaks site could not be resolved in the U.S., or if WikiLeaks could not collect revenue through donations (for example, I have donated money to WikiLeaks via PayPal). I usually dislike slippery slope arguments, but this is an area where I can see how easily it would be to have nefarious future effects (hat tip to John Halton).

Today I have seen a lot of people worried about the Gallo Report (“a stab in the back of citizens’ freedoms” says La Quadrature). Personally I’m not too concerned yet about Gallo, COICA is where the real trouble lies, and its implications will be international if passed as it is.

Edited to add: I’ve seen some claims in Twitter that state that this was presented at some ACTA discussions by MPAA representatives, does anyone have a link?

ETA 2: Jose R R has pointed out that the meeting refers to an open information meeting at the Ministry of the Economy in Mexico about ACTA. It has been covered in BoingBoing and TechDirt.