It’s hard for me to be sympathetic to the entertainment industry and its frustration with online piracy. For the last decade industry executives have consistently focused on using the legal system to protect their aging business models rather than focusing on the innovations necessary to deliver the products and services consumers want.
The entertainment industry’s newest legal tactic, the “Combating Online Infringements and Counterfeits Act,” (COICA), sponsored by Senator Patrick Leahy, has been approved by the Senate Judiciary Committee. While Senator Ron Wyden exercised his right to place a hold on pending legislation — which will stop the bill from traveling to the Senate floor immediately — proponents of COICA can (and most assuredly will) reintroduce the measure the next time Congress convenes in 2011.
This bill is short but significant. For the first time, it will give the government the power to censor the Domain Name System (DNS), one of the most critical pieces of infrastructure for the Internet.
The DNS is like a global phonebook for the Internet: always running in the background and used anytime you do anything on the Internet, including sending email and browsing websites. It’s been running without government interference for the last 25 years and it has helped enable the tremendous economic growth and innovation the Internet has provided to the U.S. and the World over the last two decades.
My company provides DNS services, and in fact one of the many features of our service gives our customers the ability to block sites on their Internet connections. Parents and school administrators block sites they deem unsafe or inappropriate for their children, and business managers block sites they deem inappropriate for a work environment. Ironically, our existence and our technical innovations in the market helped to spawn the idea for the legislation in the first place by showing that blocking sites through the DNS is technically possible. While the technology being proposed is similar, the implementation couldn’t be more different from ours.
COICA would induce all Internet Service Providers, including the largest like Comcast and Verizon, to start censoring sites on a pair of blacklists: one published and maintained by the Department of Justice without judicial oversight, and the other by the Attorney General. Sites that have been in the past or could today be considered for these lists include Ebay, YouTube, Dropbox, Facebook, SoundCloud, Veoh, Rapidshare and many other popular Internet websites. A site is a potential target for these lists if infringement, or linking to infringement, might be considered “central” to the site. Worse yet, getting on the list is easy but getting off could be quite difficult as it’s not clear what process will be in place to get off the list, even when a listing is done in error. The consequences for a law-abiding business of being blacklisted would be extremely dire.
The differences between the services my company provides and what the government is proposing are stark. We have always operated our service in a way that provides choice and control to our millions of users and customers. What COICA proposes would induce, and in some cases, force ISPs — including yours — to block websites for you without your input. The Internet is a global phenomenon and at OpenDNS we serve a global audience with customers around the world. If we are forced to block something due to a mandate by the U.S. federal government it would impact all our users, not just those in the U.S. That’s a terrible precedent for the U.S. government to set.
Furthermore, as we’ve seen with the ongoing Wikileaks.org saga, the government will try and utilize whatever resources it can to take sites offline. There is absolutely no need to arm them with a tool to automate it, let alone one that sits outside of any judicial review as COICA does.
Blocking a domain name is black and white act, meaning that if the Justice Department decided that one aspect of a website was enough to make infringement “central” their only recourse would be to block the entire website rather than systematically removing the infringing portion. For many sites this would lead to massive censorship of data and speech that was non-infringing.
Ironically, because the legal definition of what facilitates copyright infringement is so broad, even the website published by the Department of Justice that they use to list infringing websites might meet the criteria for being blocked itself!
Finally, the entertainment industry already has at its disposal ample legal remedy to enforce copyright infringement: The Digital Millennium Copyright Act (DMCA). The DMCA provides a mechanism for copyright holders to have infringing content on the Internet removed promptly without government enforcement. It also provides means of stopping sites that facilitate copyright infringing activity and was successfully used by the entertainment industry to shut down companies like Napster and Scour.
The legislation that will be considered by the Senate is not about stopping computer viruses, fighting terrorism, improving our economy or protecting children. The legislation being considered is about the US Government acting as the police force on behalf of the entertainment industry. If passed it could have far-reaching consequences on the Internet in the form of censorship, instability and economic damages.
The United States has many challenges to tackle and the Department of Justice, the Attorney General, and Congress should be focused on the many more important issues that face our nation rather than the demands of an aggressive entertainment industry lobbying effort.
More information about COICA can be found here: https://www.eff.org/coica