Commentary
Anti-Piracy Proposal Pits Free Speech Advocates Against Newspaper Association of America
- by Wendy Davis , Staff Writer @wendyndavis, November 18, 2010
The vote drew sharp condemnation from digital rights groups, who say the Combating Online Infringement and Counterfeits Act would allow the government to unconstitutionally shut down speech. "Rather than just targeting files that actually infringe copyright law, COICA's 'nuclear-option' design has the government blacklisting entire sites out of the domain name system -- a reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech," says the Electronic Frontier Foundation.
A coalition of more than 40 law professors likewise argues that the bill would "fundamentally alter U.S. policy towards Internet speech, and would set a dangerous precedent with potentially serious consequences for free expression and global Internet freedom."
They argue that the law is troubling because it would allow courts to order injunctions against domain registrars before hearing the Web site operators' side of the story. "The act contains no provisions designed to ensure that the persons actually responsible for the allegedly infringing content -- the operators of the target websites -- are even aware of the proceedings against them, let alone have been afforded any meaningful opportunity to contest the allegations in a true, adversarial proceeding," the law professors write.
Additionally, they argue, the law would "suppress vast amounts of protected speech containing no infringing content whatsoever," because more than one individual site can operate under a single domain name. "Indeed," the letter states, "many web hosting services operate hundreds of thousands of websites under a single domain name."
The Motion Picture Association of America, Recording Industry Association of America and a host of entertainment companies and unions back the bill, which has also drawn some surprising support from the Newspaper Association of America -- a group that one would expect to be especially sensitive to censorship concerns. The organization says that the law's "narrowly tailored provisions support free discourse online." And, completely ignoring the possibility that innocent sites would get swept up in a domain name takedown, the organization insists that the only sites that would be blocked are the ones primarily designed to offer infringing material. Blocking that kind of site, the NAA says, doesn't harm free speech because it "doesn't contribute to online discourse."
Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com
The courts are doing a good job developing the fair use doctrine in the context of the internet. This is a sledge hammer approach that will serve everyone poorly in the long term.
Another Media Post article in favor of piracy. Wendy, the law has long recognized that the constitution mentions both intellectal property (article I, Section 8) and free speech, because the right to control your own work is both a fundamental freedom and provides and incentive to speak - and so supports first amendment values. Copyright has special first amendment protections, such as fair use and the fact that it doesn't protect ideas at all (see 17 USC 102(b)). So the idea that shutting down at the borders sites "dedicated to infringement" - sites that traffic in illegal drugs, phony car parts and probably even fake articles under the name Wendy Davis or Media Post - infringes on the first amendment is just - excuse me - inane. "individual files" sounds nice - but its futile to impose on copyright owners an obligation to take down individual files on an illegal site based in the Ukraine. And even if it could be done - shouldn't writers and artists be writing and creating art, rather than spending their day sending takedowns to Russian organized crime and Venezuelan pirate businesses? Customs stops illegal drugs at the border and there is no reason customs can't stop illegal copyright theft at the same place through this terrific new bill.
This is a potential nightmare for sites with forums, and one of the most damaging scenarios isn't even mentioned in the article. Most forums have at least a few trolls in their midst who do everything in their power to disrupt the forums. It would be simple for them to post entire articles and other copyright protected material, and then blow the whistle on the website and forum, possibly shutting it down, with no warning to the site owner. This proposed law is a disaster.