Congress Considers Legislation on “Rogue” Websites
Citing billions of dollars in lost revenue for American businesses, and hundreds of thousands of lost jobs, in the final months of 2010, Senate Judiciary Committee Chairman Patrick Leahy (D-VT), along with Senator Orin Hatch (R-UT) introduced legislation aimed at fighting online privacy and counterfeiting on “rogue” websites. Despite being met with opposition from privacy groups and others based in part on First Amendment concerns, the bill advanced out of the Judiciary Committee. However, due to both scheduling and political reasons, the bill did not advance further. Once again this year, Senator Leahy, along with his colleagues in the House, is committed to introducing legislation that will target websites that traffic in infringing goods, and is already moving forward on that goal.
As introduced, COICA, the Combating Online Infringement and Counterfeits Act, would have fought illegal online copyright infringement by empowering the U.S. Attorney General to seek expedited court orders requiring U.S. domain-name registrars to shut down domestic websites suspected of hosting infringing materials. The bill would also have allowed the Department Of Justice, through court orders, to order U.S. ISPs to redirect customer traffic away from infringing foreign websites. A broad collection of supporters, including MPA and nearly every major media organization along with others, was countered by a group that included public interest groups concerned about potential due process and First Amendment issues.
Working quickly to address opponents concerns, the bill was modified to remove several provisions, including one allowing the Attorney General to create a “black list” of infringing sites. With the bill amended, in late January, the full Judiciary Committee voted to approve the measure 19-0.
Though ready for full Senate action, citing concerns about the First Amendment implications of the bill, which he called a “bunker-busting cluster bomb,” Senator Ron Wyden (D-OR) put a hold on the legislation. With only a few days remaining in the 2010 legislative session, the hold removed any chance of the bill advancing.
Following a January 2011 speech by Senator Leahy that called piracy a top priority, the Committee wasted little time once again moving forward on the issue, holding a hearing on the matter in February. Focused on websites dedicated to unlawfully infringing U.S. intellectual property, the hearing included witnesses representing the interests of registrars, ISPs, payment system providers, and IP holders.
As he noted in the hearing, Chairman Leahy has been in conversations with his counterpart in the House, House Judiciary Committee Chairman Lamar Smith (R-TX), to gain Congressional momentum on this issue, an effort that has already born fruit. On March 14th, the House Judiciary Intellectual Property, Competition, and the Internet Subcommittee held the first of two hearings on “Promoting Investment and Protecting Commerce Online.” Among the witnesses in support of legislation was Maria Pallante, Acting Registrar of Copyrights, who argued the best way to resolve the problem was to cut off the revenues of rogue websites by blocking their access to payment processers and advertising revenues. Others, such as the Center for Democracy & Technology’s David Sohn expressed concern over the domain name seizures COICA would have authorized. And while most of the legislators at the hearing voiced their support for legislation, others, including Zoe Lofgren (D-CA) and Mel Watt (D-NC) expressed concern that enforcement efforts could compromise website operator’s rights. In advance of the second House hearing, held on April 6th, , legislators from both sides of the aisle and both bodies of Congress held a joint press conference highlighting their continued concern about the threat online infringement and counterfeits pose to American jobs and the economy. The second hearing was most notable for the presence of a representative of Google, who was asked extensively about its role in facilitating access to infringing sites.