April 24, 2014

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Copyright, Censorship, and Domain Name Blacklists at Home in the U.S.

Last week, The New York Times reported that Russian police were using copyright allegations to raid political dissidents, confiscating the computers of advocacy groups and opposition newspapers “under the pretext of searching for pirated Microsoft software.” Admirably, Microsoft responded the next day with a declaration of license amnesty to all NGOs:

To prevent non-government organizations from falling victim to nefarious actions taken in the guise of anti-piracy enforcement, Microsoft will create a new unilateral software license for NGOs that will ensure they have free, legal copies of our products.

Microsoft’s authorization undercuts any claim that its software is being infringed, but the Russian authorities may well find other popular software to use as pretext to disrupt political opponents.

“Piracy” has become the new tax evasion, an all-purpose charge that can be lobbed against just about anyone. If the charge alone can prompt investigation — and any electronics could harbor infringing copies — it gives authorities great discretion to interfere with dissidents.

That tinge of censorship should raise grave concern here in the United States, where Patrick Leahy and Orrin Hatch, with Senate colleagues, have introduced the “Combating Online Infringement and Counterfeits Act.” (PDF).

This Bill would give the Attorney General the power to blacklist domain names of sites “offering or providing access to” unauthorized copyrighted works “in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays”; as well as those offering items with counterfeit trademarks. The AG could obtain court orders, through “in rem” proceedings against the domains, enjoining the domain name registrars or registries from resolving the names. Moreover, in the case of domains without a U.S. registrar or registry, other service providers, financial transaction providers, and even advertising servers could be caught in the injunctive net.

While the Bill makes a nod to transparency by requiring publication of all affected domain names, including those the Department of Justice “determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section,” it then turns that information site into a invitation to self-censorship, giving legal immunity to all who choose to block even those names whose uses’ alleged illegality has not been tested in court. (Someone who is listed must petition, under procedures to be determined by the AG, to have names removed from the list.)

Finally, the statute’s warped view — that allegations of infringement can only be good — is evident in the public inputs it anticipates. The public and intellectual property holders shall be invited to provide information about “Internet sites that are dedicated to infringing activities,” but there is no provision for the public to complain of erroneous blockage or lawful sites mistakenly or maliciously included in the blacklist.

Hollywood likes the Bill. Unfortunately, there’s plenty of reason to believe that allegations of infringement will be misused here in the United States. Even those who oppose infringement of copyright and trademark (myself included) should oppose this censorious attempt to stop it.

cross-posted at Legal Tags.

Comments

  1. Nathan T. says:

    How come it doesn’t surprise me to hear that Orrin Hatch is sponsoring yet another Hollywood bill (he also sponsored the [Anti-]Family Home Entertainment Act). He claims to be a conservative, but he is so deep in the pockets of Hollywood and other media juggernauts which are all very liberal. There is no way anyone looking at his bill sponsorship could claim Orrin Hatch is a conservative.

    However, because of that big R in his title, he most likely will get voted in office yet again by the 2nd reddest state in the nation. As for me, I will vote against him when his voting cycle comes up. This is the same senator who plead for a presidential pardon of a convicted drug dealer because “he is a musician.” Orrin Hatch must go!!!

  2. Anonymous says:

    This involves ‘Big Money’, Nathan. That’s all the Republicans stand for. They just bleat about social issues to manipulate weak, frightened people like you. By the way, the US Constitution is *designed* to be liberal. That is because the USA was intended to be a democracy… I’m not going too fast for you here, am I?

  3. Anonymous says:

    Anon, it would be silly to say that Democrats are interested in anything other than serving their corporate sponsors. This is why they vote overwhelmingly in favor of…
    - A subsidy for the insurance industry
    - A program to destroy used cars
    - EESA

  4. Nathan T says:

    Anonymous, I agree that the republicans tend to look at “Big Money.” That is the problem, both with Republicans and Democrats. So, yes, this is about money, and Hatch is in the pockets as I stated of liberal media outlets.

    Yes, I also agree that Republicans try to manipulate the weak and frightened people (not like me), as the democrats do as well.

    I disagree with your last bit. the Constitution was not designed to be liberal nor conservative, it was designed to institute a democratic republic. Giving “the people” the say in what representation they have for those who make laws, oversee the rule of order, govern the population with policy (domestic and foreign), and judge the law and those that do not abide by it. Our form of government (from the constitution) is not a democracy (common mistake). It is a republic.

    Unfortunately, it is no longer even a democratic-republic, based on the constitution, it has become a monetary-republic. He who has the gold gets representation. That is the case with Hollywood and Hatch. Hollywood has the money, so they get representation by Hatch. Same goes for democrats though and pretty much all other politicians, it is all about “Big Money.”

  5. Domain who is says:

    ?t is a very important point that while someone buying old domain, he must check is this domain in blacklist or not.
    But there isn’t completely reliable web site for this.

  6. rp says:

    Either intentionally or unintentionally. Under the various whine-about-linking legal theories, pretty much every aggregator or seach-enabled site has a fair chance of being accused of dedication to infringement.

  7. Anonymous says:

    This is basically the “kill Google and eBay” bill, since if it passed it would in fact kill Google (plenty of links to infringing material) and eBay (trademark infringement aplenty).

    Spread around the information that it’s a “kill Google and eBay” bill and hopefully that will help kill this bill.

    As for the damn politicians … Republicans vs. Democrats. Whoever wins, we lose. It’s time we had a third party that was a credible challenge to both of them.