Will Internet pirates walk the plank in 2011?

As speculation continues over what to expect from a polarized 112th Congress, legislative attacks on Internet pirates offering fake Louis Vuitton bags and illegal movie downloads online could be an issue that gains traction in 2011. Both Republicans and Democrats view counterfeiting as a global problem that threatens this nation’s economic might and creative talent.

Previous litigation and earlier legislative fixes have failed to alleviate the problem, and now Hollywood and other affected industries last year urged Congress to take a different approach by passing the Combating Online Infringement and Counterfeits Act.  COICA aimed at halting the selling, marketing and downloading of illegal materials on Internet sites by cracking down on the domain names of websites that are “dedicated to infringing activities.” Introduced in the Senate last year, COICA garnered bipartisan support and passed the Senate Judiciary Committee by a unanimous vote last November, but controversy over some of the more punitive enforcement measures stalled further action. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) is expected to re-introduce legislation in 2011.

The most controversial provision in the Leahy bill allowed the U.S. Attorney General to obtain court orders mandating that U.S. registrars and registries suspend offending websites. The remedy is not quite a death sentence for these websites but it would prevent an Internet user from easily accessing sites. The bill would have created a legal framework for going after websites with foreign-registered domain names.  COICA allowed the Department of Justice to order third-party entities such as Internet Service Providers, companies facilitating online payments and online advertisers to stop conducting business with an offending website. The owners of a domain name blocked by the Department of Justice or a third-party entity served by federal enforcers may ask a federal judge to unblock the website.

COICA supporters contend that these rogue websites should be barred from the online marketplace and only tough measures will succeed. Bob Pisano, president and interim CEO of the Motion Picture Association of America, Inc., has written that COICA would give “law enforcement significantly enhanced tools for addressing a threat that deprives American innovators of the fruits of their labors and menaces our nation‘s economic health.”

Still, it is questionable whether the tough enforcement provisions in last year’s bill can garner majority support on Capitol Hill without significant changes.  Sen. Ron Wyden (D-Ore.) called COICA a “bunker-buster cluster bomb,” warning that the “collateral damage” from these provisions could endanger “American innovation, American jobs and a secure Internet.”

Other critics said COICA tramples on free speech and contains such broad definitions that non-infringing websites will be flagged.  In a letter to the Judiciary Committee, 49 law professors questioned the constitutionality of the legislation and cautioned that the bill “will have dangerous consequences for free expression online and the integrity of the Internet’s domain name system, and will undermine United States foreign policy and strong support of Internet freedom abroad.”  The bill “contains no provisions designed to ensure that the persons actually responsible for the allegedly infringing content–the operators of the target websites–are even aware of the proceedings against them, let alone have been afforded any meaningful opportunity to contest the allegations in a true, adversarial proceeding,” the letter stated.

Despite these criticisms, some of the legislation’s harshest critics have endorsed COICA’s goals. After the Senate Judiciary Committee vote, for example, Gigi B. Sohn, president of Public Knowledge, issued a statement observing that the panel “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.” Yet Sohn emphasized that she would be willing to help craft a “more narrowly tailored bill” to deal with “rogue websites.” 

If Congress is to enact legislation in 2011, lawmakers must adopt a conciliatory approach by crafting a bill with less punitive enforcement measures. The Obama administration could play a critical role as peacemaker, urging significant protections for legitimate intellectual property without endangering free speech on the Internet. Despite the political bickering on Capitol Hill, a compromise on COICA is possible. As Sen. Leahy said last year, “Protecting intellectual property is not uniquely a Democratic or Republican priority – it is a bipartisan priority.”

Sutton A. Meagher is an intellectual property attorney in the Washington, D.C., office of Vorys, Sater, Seymour and Pease LLP.