September 21, 2010

Copyright, Censorship, and Domain Name Blacklists at Home in the U.S.

Filed under: Chilling Effects, Internet, censorship, copyright, trademark — wseltzer @ 12:33 pm

Last week, The New York Times reported that Russian police were using copyright allegations to raid political dissidents, confiscating the computers of advocacy groups and opposition newspapers “under the pretext of searching for pirated Microsoft software.” Admirably, Microsoft responded the next day with a declaration of license amnesty to all NGOs:

To prevent non-government organizations from falling victim to nefarious actions taken in the guise of anti-piracy enforcement, Microsoft will create a new unilateral software license for NGOs that will ensure they have free, legal copies of our products.

Microsoft’s authorization undercuts any claim that its software is being infringed, but the Russian authorities may well find other popular software to use as pretext to disrupt political opponents.

“Piracy” has become the new tax evasion, an all-purpose charge that can be lobbed against just about anyone. If the charge alone can prompt investigation — and any electronics could harbor infringing copies — it gives authorities great discretion to interfere with dissidents.

That tinge of censorship should raise grave concern here in the United States, where Patrick Leahy and Orrin Hatch, with Senate colleagues, have introduced the “Combating Online Infringement and Counterfeits Act.” (PDF).

This Bill would give the Attorney General the power to blacklist domain names of sites “offering or providing access to” unauthorized copyrighted works “in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays”; as well as those offering items with counterfeit trademarks. The AG could obtain court orders, through “in rem” proceedings against the domains, enjoining the domain name registrars or registries from resolving the names. Moreover, in the case of domains without a U.S. registrar or registry, other service providers, financial transaction providers, and even advertising servers could be caught in the injunctive net.

While the Bill makes a nod to transparency by requiring publication of all affected domain names, including those the Department of Justice “determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section,” it then turns that information site into a invitation to self-censorship, giving legal immunity to all who choose to block even those names whose uses’ alleged illegality has not been tested in court. (Someone who is listed must petition, under procedures to be determined by the AG, to have names removed from the list.)

Finally, the statute’s warped view — that allegations of infringement can only be good — is evident in the public inputs it anticipates. The public and intellectual property holders shall be invited to provide information about “Internet sites that are dedicated to infringing activities,” but there is no provision for the public to complain of erroneous blockage or lawful sites mistakenly or maliciously included in the blacklist.

Hollywood likes the Bill. Unfortunately, there’s plenty of reason to believe that allegations of infringement will be misused here in the United States. Even those who oppose infringement of copyright and trademark (myself included) should oppose this censorious attempt to stop it.

Cross-posted at Freedom to Tinker.

7 Comments »

  1. [...] more from Wendy Seltzer, ZDNet, The Hill,  The Hollywood Reporter, Billboard, Slashdot, Wired, BoingBoing… apparently I [...]

    Pingback by New Senate Bill to Combat Online Piracy « Andy on the Road — September 21, 2010 @ 2:07 pm

  2. [...] Wendy Seltzer, Copyright, Censorship, and Domain Name Blacklists at Home in the U.S. [...]

    Pingback by Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs | ZDNet — September 21, 2010 @ 3:53 pm

  3. So the government will be checking for sites that offer poetry, photography, illustration, fine art and painting reproductions, newspaper stories, comics ….?

    And of course they’ll check what content is in the public domain or has actually been licensed…

    Or does this only provide some kind of “privileged” copyright enforcement for selected Hollywood films and big record label music?

    Comment by David Sanger — September 21, 2010 @ 4:12 pm

  4. I support this bill. Senator Leahy has found a good balance that addresses the needs of creators and those that wish to speak freely on the Internet. And nihilism towards copyright shouldn’t be allowed to function under the false guise of “free speech”. Commercial piracy operations who flaunt “free speech” as a shield to their illegal activities not only endanger our US constitutional civil liberties of speech, but they are wedging one constitutional issue against another. In the US Constitution, Article 1 Section 8 is known as the “Copyright Clause”. Concerning copyright, it exists in our Constitution “..to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” By allowing false “free speech” arguments to run roughshod over the Constitutional rights of creators, this scenario eventually devolves into a New Crusades to “liberate” society from “enslavement” by “evil copyrights”. Yet, both speech and copyright lay in the foundations of our constitution. Both are important to our Democracy, so much so that a balance must be found. As for now, creators are leaving the business of creating. This is very bad for our society. The music industry, which is just one casualty in this mess, looks like a dried sponge. And where is the new replacement for our music industry? Why can’t brilliant minds come up with new business models and innovations? The answer is that in a lawless society, businesses fail. It doesn’t matter the type of business or how revolutionary the business model is, no one can work in an atmosphere of nihilism. And without a bill like 3084, it’s only going to get worse for creators and society will be less rich for it.

    The Pirate Bay distributed BILLIONS of dollars worth of illegal files. I dare anyone to refute this fact. So unless your website is in the business of damaging global industries, I wouldn’t be too worried about censorship.

    Comment by Jeremy Soule — September 22, 2010 @ 7:46 pm

  5. [...] up free expression and put any action into some form of greater utilitarian calculus.  But Prof. Seltzer makes a good point about the private sector’s involvement in this bill – IP-owners are [...]

    Pingback by Further thoughts on S. 3804: I’m more scared than I was yesterday « Andy on the Road — September 24, 2010 @ 10:54 am

  6. “The Pirate Bay distributed BILLIONS of dollars worth of illegal files. I dare anyone to refute this fact…”

    the pirate bay has distributed BILLIONS of .torrent files, which, when examined inside and out contain not a single zero or one “belonging” to, say, sony pictures.

    “…website is in the business of damaging global industries…”

    disruption sux, to paraphrase dr. schumpeter. that is if your the disruptee http://bit.ly/cndMyB . for me, the average joe on the street or in their car, it’s a beneficial godsend.

    Wendy, wonderful article, please think about the institutional/bureaucratic implications of a d.o.j. blacklist. really scary stuff.

    Comment by robin — September 24, 2010 @ 7:13 pm

  7. [...] theatrics in the draft PROTECT IP bill (pdf, via dontcensortheinternet ) that has emerged as son-of-COICA, starting with the ungainly acronym of a name. Given its roots in the entertainment industry, that [...]

    Pingback by Wendy’s Blog: Legal Tags » Debugging Legislation: PROTECT IP — May 12, 2011 @ 10:45 am

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