While much has been stripped out of the end-of-year copyright bill that passed the Senate over the weekend S. 3021 (pdf), much that’s harmful remains. Particularly egregious is a provision that hasn’t gotten much attention, the “Fraudulent Online Identity Sanctions Act.” Ostensibly aimed at infringers who hide behind false domain name registrations, the provision seriously penalizes those who merely want to protect their privacy.
Because there’s no way to opt-out of publication of private address information in the WHOIS database when you register a domain name, your choices are to expose your address and phone number; use a possibly unreliable intermediary; or fake it. Unfortunately, if you choose the last option and FOISA passes, you’ll now be presumed to be a willful infringer of copyright or trademark. A critic who makes liberal use of a company trademark, or a commentator who quotes a chunk from another’s text, both now face a much steeper hurdle in their fair use defenses.
Also in the bill are criminal penalties for making available a single “pre-release” work and for recording a movie while it’s playing in a theater. I’m not arguing that this infringement is right, but it’s not the kind of thing we should be sending kids to jail for, either.
The bill adds an entirely new Title VII, “Professional Boxing Safety.” Since the whole thing still has to pass the House, let’s hope someone there finds this objectionable enough to KO the bill.