A little more than a week ago, the U.S. Departments of Justice, Homeland Security, Immigration and Customs Enforcement, as well as nine U.S. Attorneys‘ Offices, seized 82 domain names, alleging that they pointed to sites that engaged in the illegal sale and distribution of counterfeit goods and copyrighted works.
While it seems likely that the majority of these sites were in fact solely dedicated to selling infringing goods, some were not. The raid was executed in a way that bypassed due process and the existing Digital Millenium Copyright Act (DMCA), cut out hosting companies, and left site owners — even potentially innocent ones — without recourse to the American court system. Furthermore, based on what we know today, it may be up to 60 days before any affected party can challenge the seizure of their businesses.
This seizure is even more disturbing when considered in the context of the impending Combating Online Infringement and Counterfeits Act (COICA) – a bill which passed the Senate Judiciary Committee last month, and is headed for a vote in the House and Senate soon. Simply put, COICA will make it even easier for the DoJ to conduct domain seizures like the ones that took place last week, with even less transparency.
ServInt believes COICA is an extremely dangerous, fundamentally un-American bill, and we oppose it. COICA poses an enormous risk to America’s competitiveness – and, if passed, could result in a massive disruption of our Internet-dependent economy.
Since our founding in 1995, we’ve witnessed first-hand how the Internet has transformed the way America and the rest of the world works. It is now clear that there is no longer a difference between ‘commerce’ and ‘e-commerce’; all business touches the Internet.
Under COICA, the U.S. government has the right to behave in a distinctly un-American way. It allows the Department of Justice to seize entire web domains if it is convinced by a copyright holder that unauthorized content resides anywhere on that site – regardless of how much perfectly legal content may reside elsewhere within the domain. In addition, COICA provides no clear path for appeal – nor does it detail any specific procedures the government is required to follow when investigating claims of criminal activity. In fact, the bill places the full burden of proof on the publisher instead of the accuser. To put it bluntly, there are many striking – and unsettling – similarities between COICA and the methods used by some of the world’s most repressive regimes to govern the flow of Internet content within their borders.
How will this impact the American internet economy? One of COICA’s likely side effects is that many American businesses – legitimate, legal businesses that simply want to limit exposure to potential wrongful seizure — will move their content overseas. That would, of course, be bad for hosts like us – and bad for businesses that enjoy the high reliability, low latency and customer support benefits they get from having their businesses hosted here in the United States.
But the problem won’t stop there – because COICA also requires American ISPs to block access to foreign-based domains that host any content the DoJ deems, in its sole discretion, to be in violation of copyright laws. The list of game-changing Internet giants that got their start over copyright holders’ objections – including YouTube, Skype, Yahoo, Facebook, and many more – is a long one. Do we really want to build a “Great Wall of America” that inhibits the emergence of the next great American web-based mega-business?
But beyond the economic impact of this legislation, we also believe that COICA is fundamentally unconstitutional. It glosses over key aspects of the 1st, 4th, 5th, 6th, and 7th Amendments to the U.S. Constitution, which guarantee the right to free speech, due process, protections against unreasonable search and seizure, and more.
We recognize that American copyright holders have legitimate concerns about the ownership of their content, and that today’s Internet is a place where criminals can buy and sell illegal material with greater ease than they could for most of the last century. However, it is clear that this bill largely reflects the interests of huge media conglomerates and their lobbyists, and was written to allow them to squelch any kind of Internet-based competition, while also allowing them to act as judge and jury for suspected copyright thieves.
A Washington truism is that a well-funded lobbying effort will often succeed at the expense of small business and the American consumer, and COICA is a prime example. We think the principal problem with this bill is that, like many pieces of internet-related legislation, it was written in a factual vacuum. We believe that the hosting industry, as well as other industry players affected by this bill, must have a seat at the table to help design policy that makes technological – as well as constitutional — sense.
ServInt values intellectual property and works diligently to defend rights-holders wherever and whenever we can. Like most hosting companies, we have staff specifically devoted to prosecuting complaints and concerns in this area. In fact, under the DMCA, copyright holders have the right to hold companies like ours liable if they believe we are not effectively responding to their complaints about copyright infringement. All things considered, this is a burden of responsibility we would rather not have to bear, but it is greatly preferable to the measures COICA proposes.
ServInt, and our colleagues in the hosting industry want to help build better, more effective policy. Right now, however, hosting companies have been cut out of the rule-making equation altogether – and, as an industry that understands the nuts and bolts of the internet better than anybody else, our exclusion simply doesn’t make sense.
We applaud Senator Ron Wyden (D – OR) for his efforts to halt the bill as written in the Senate, and we strongly urge Democratic, Republican, and Independent members of Congress to follow his example by taking a serious and thorough look at the potential ramifications of this law before casting a vote.
Ultimately, we seek legislation that fully protects the rights of content owners – but also provides a fair, just and transparent forum for both the content owner and the accused. A judicial process that is true to our nation’s values will guarantee that content creators and copyright holders are paid for their work, while those who steal it are punished – after a full and fair investigation. Legislation that produces such a process is what we seek – and what we are willing to fight for.