This past week, the Senate conducted hearings on the Combating Online Infringement and Counterfeits Act which, if passed, would provide the Attorney General with broad authority to shut down U.S. and foreign internet sites “dedicated to infringing activities.” The Act was introduced in September 2010 and unanimously approved by the Senate Judiciary Committee late last year; nevertheless, it has yet to receive a full vote on the Senate floor. If passed, the Act would require the U.S. Attorney General to independently investigate potentially infringing websites and submit these findings to a judicial board. The board would then determine whether the site is “dedicated to infringing activities”; if so, the government would (1) suspend operation and lock the domain name; (2) ban credit card companies and financial institutions from processing any domestic transactions related to the site; and (3) prohibit online advertisers from working with or sending traffic to the site. And, in what is perhaps the best news for copyright owners: the government would do all of this free-of-charge. Not surprisingly, then, the Act’s most ardent proponents include the RIAA, MPAA, and the Screen Actors Guild.
The Act’s critics, for their part, argue that ithe provisions are overly broad and, as evidence of this point out that the Act would permit the government to censor sites that merely “enable or facilitate a violation”. Further, critics note that the government would be required to keep a list of sites simply accused of infringement — even if no evidence were ever submitted. In a statement issued last week, the Consumer Electronics Association warned that this “would erode the Supreme Court’s landmark Betamax decision that protects technology products with substantial non-infringing uses.”
Some of the Act’s supporters, on the other hand, think the provisions don’t go far enough. For example, during last week’s hearing, the Author’s Guild proposed an amendment removing the Digital Millennium Copyright Act’s ‘safe harbor’ for online service providers. Eliminating this provision, which the Author’s Guild characterized as “an exploitable gold mine for unscrupulous online enterprises”, would allow Google, for example, to be held legally accountable for returning search results that direct users to infringing content. Similarly, the owners of Rosetta Stone proposed amending the Act to permit private parties to submit the results of their own investigations to the government. This would, of course, provide private parties with a more direct and less expensive way of shutting down smaller infringers that the government’s investigations might otherwise ignore.
We will have to wait and see what comes of the Act; however, in the meantime, you can continue to track the Senate’s progress here.