Senate Judiciary Backs Online Piracy Bill

National Journal
The Senate Judiciary Committee approved legislation today aimed at cracking down on online piracy and counterfeiting, with a particular emphasis on rogue foreign websites.

The Combating Online Infringement and Counterfeits Act would authorize the Justice Department to file a civil action against a domain name linked to piracy or counterfeiting and seek a preliminary order to shut down the domain name.

“The Internet needs to be free – not lawless,” Senate Judiciary Chairman Patrick Leahy, D-Vt., the bill’s sponsor, said in a statement. The bill “will give the Department of Justice a new and more efficient process for cracking down on rogue websites, regardless of where overseas the criminals are hiding.”

Even though it was approved on a 19-0 vote, the bill is unlikely to pass the Senate during the lame-duck session. While noting that she was “pleased to support the bill,” Sen. Dianne Feinstein, D-Calif., said it would need some more work as it moves forward, citing concerns raised by critics about the provision that could lead to the revocation of a domain name for websites found to be involved in piracy or counterfeiting. Judiciary ranking member Jeff Sessions, R-Ala., said that Sen. Tom Coburn, R-Okla., who was not at the markup, also indicated the bill would need more work and has requested a hearing on the measure.

The bill’s opponents are “particularly concerned about the domain name remedy,” Feinstein said. She said the committee should be “open-minded to the alternatives on this one point.”

More than 80 Internet engineers pointed to this provision in an open letter they signed in late September opposing the bill.

“To date, the leading role the U.S. has played in [the Internet] infrastructure has been fairly uncontroversial because America is seen as a trustworthy arbiter and a neutral bastion of free expression,” said the letter, which was signed by Esther Dyson — the inaugural chairman of the Internet domain name management group, the Internet Corporation for Assigned Names and Numbers — along with former ICANN board member Karl Auerbach and others. “If the U.S. suddenly begins to use its central position in the [domain name system] for censorship that advances its political and economic agenda, the consequences will be far-reaching and destructive.”

Public Knowledge President Gigi Sohn said in a statement after the committee’s action that her group is “disappointed that the Senate Judiciary Committee this morning chose to disregard the concerns of public-interest groups, Internet engineers, Internet companies, human-rights groups and law professors in approving a bill that could do great harm to the public and to the Internet.”

The committee approved a substitute amendment by voice vote aimed at addressing some of these concerns, including adding language requiring that a court must find the “rogue website is dedicated to infringing activity before any action is required,” according to Leahy. This includes adding a definition of what it means to be “dedicated to infringing activity.”

The substitute also clarifies that an action brought against a domain name must be filed in the judicial district where the company that registered the domain name is located, or in Washington, D.C., if the entity is based outside the United States. In addition, the substitute specifies rights available to domain name holders when a legal action is brought against an Internet address believed to be linked to infringement.

Describing the measure as “carefully crafted,” David Hirschmann, president and CEO of the U.S. Chamber of Commerce’s Global Intellectual Property Center, said the bill “will facilitate continued innovation and creation, support consumer access to legitimate products and services, and safeguard consumers from rogue sites that break the law and harm unsuspecting consumers.

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