Imagine having a nemesis who assaults you daily (often mocking you as it does) yet somehow stays beyond the reach of the law. That's a rough approximation of the entertainment industry's view of online piracy — particularly the kind practiced by the likes of Sweden's The Pirate Bay, Latvia'smp3fiesta and a growing number of websites that stream bootlegged movies and TV shows from digital lockers. Such sites exist almost exclusively to promote illegal downloading or streaming of movies, music, video games and software, making money through advertisements or even by selling unauthorized copies of the works themselves.
Copyright holders have shut down some offending sites through civil suits and federal investigations, but these cases have taken years to complete. Meanwhile, new sites and services have emerged to replace the shuttered ones, and the amount of copyright infringement has increased over the years as broadband connections have proliferated.
Fed up, the entertainment industry has lobbied hard for a more powerful legal weapon against online piracy. It found a receptive audience in the Senate Judiciary Committee, which unanimously approved a bill this month that would speed the process of penalizing such sites. The goal of the Combating Online Infringement and Counterfeits Act (S 3804) is a good one — there's no defense for online businesses whose raison d'etre is infringement. But some of the methods employed by the bill could create significant problems of their own.
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Sponsored by Sen. Patrick Leahy (D-Vt.), the bill would make it easier for the Justice Department to obtain court orders cracking down on sites "dedicated to infringing activities." Such orders could be obtained against foreign-based sites that attract U.S. Internet users as well as domestic companies.
Sites that use a U.S. domain-name registrar (a company that sells domain names, such as GoDaddy.com) or registry (a company that oversees the registrars for a category of domains, asVeriSign does for .com, .net, .cc and .tv) would be subject to the most direct penalties. In those cases, a court could order the registrar or registry to invalidate the site's domain name, removing it from the global database that Internet service providers use to direct traffic online. That's akin to ordering road atlases to erase a street from their maps — it would still be there, but it would be much harder to find.
The bill would take a different approach to sites that used foreign registrars and registries, which are beyond the reach of U.S. courts. In those cases, courts could order U.S. Internet service providers, payment processing companies (such as Visa and MasterCard) and online advertising networks to stop sending traffic, money or ads to the offending sites.
Some critics have complained that the Leahy bill isn't targeted narrowly enough, so it conceivably could be used against sites that provide a useful outlet for legitimate content distributors in addition to bootleggers. Another criticism is that the bill wouldn't give offending sites a fair chance to defend themselves. In fact, the Justice Department wouldn't even have to inform the actual operator of the site before obtaining an injunction against it — it would simply have to send a notice to whoever is listed as the domain name's registrant.
Such problems, although potentially serious, could be addressed by refining the bill's definition of what it means to be a site "dedicated to infringing activities" and the process it lays out for obtaining court orders. A more troubling question is whether the Justice Department should be focusing on domain names at all.
A site's actual Internet address isn't its domain name but rather a series of up to 12 numbers separated by the occasional period. The domain name — the portion of the URL that comes after "www." — is just a form of branding. When someone types a URL into a browser, the software looks up the corresponding numerical address in a database of domain names, typically the one furnished by the user's Internet service provider.
The court orders made available by the bill would remove the offending site's name from the databases used by U.S. service providers, but they wouldn't stop people from typing the site's numerical address into their browsers. Nor would people be prevented from using alternative databases overseas — say, one maintained by The Pirate Bay. Such a migration could undermine efforts to fix the security problems in the domain name system, which can leave Internet users vulnerable to identity theft and other online threats.
Some technology advocates and public interest groups also have warned that the bill's domain-name provisions would violate free-speech principles — because some legitimate content may exist alongside pirated material on blocked sites — and encourage other countries to draw up their own blacklists of sites that don't comport to their unique dictates. Meanwhile, a virtual who's who of Internet pioneers contend that the bill could endanger the leading role the United States has played in technical issues online.
Entertainment industry executives have challenged critics to come up with alternative ways to address sites like The Pirate Bay, rather than just conjuring worst-case scenarios to gin up opposition to Leahy's proposal. They've got a point — some of the groups lining up against the bill seem more concerned about the entertainment industry abusing its copyrights than websites trying to profit off piracy.
Nevertheless, there are real questions about the effectiveness and consequences of the domain-name seizure provisions. It's worth noting that when Congress decided to crack down on Internet gambling sites in 2006, it didn't give the Justice Department new power to seize domains — instead, it focused on cutting off the flow of money from gamblers in the U.S. to betting sites around the world. Similarly, it makes sense for Congress to crack down on the revenue flowing to piracy hotbeds online, as the Leahy bill's provisions for advertising networks and payment processing companies would do.
With Congress set to adjourn soon, the bill isn't likely to progress any further this year. That's a good thing. Before moving the bill on, lawmakers should take a closer look at whether its domain-name provisions are likely to work, as well as their implications for the health of the Internet as a whole. Copyright holders shouldn't be left defenseless against the Pirate Bays of the world, but the proposed seizure of domain names is the least promising enforcement mechanism in the Leahy bill.
Here is an interesting proposal for an alternative to ICANN