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Proposed US law could force ISPs to block websites on piracy allegations


The US Senate heard proposals this week for a new law which would give US authorities the right to block access by US internet users to websites accused of copyright infringement, including sites based outside the US.

The chairman of the Senate Judiciary Committee, Patrick Leahy, has proposed the Combating Online Infringement and Counterfeits Act, which would give the US Department of Justice (DoJ) powers to "crack down" on "websites that are dedicated to making infringing goods and services available".

Digital rights group the Electronic Frontier Foundation said that the proposal endangers users' and site publishers' rights to free expression.

"This flawed bill would allow the Attorney General and the Department of Justice to break the Internet one domain at a time – by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites," said an EFF statement.

"This is a censorship bill that runs roughshod over freedom of speech on the Internet," it said. "Free speech is vitally important to democracy, which is why the government is restricted from suppressing speech except in very specific, narrowly-tailored situations. But this bill is the polar opposite of narrow – not only in the broad way that it tries to define a site 'dedicated to infringing activities,' but also in the solution that it tries to impose – a block on a whole domain, and not just the infringing part of the site."

The proposed law would create a list of websites which internet service providers (ISPs), web hosts and other intermediaries would have to block access to on the Attorney General's order, the EFF said. It said that another list of sites the DoJ suspected of infringing would be produced which could be blocked by intermediaries with legal immunity.

"The Justice Department is currently limited in the remedies available to prevent websites dedicated to offering infringing content," said Leahy. "[Infringing] websites are often based overseas yet target American consumers. American consumers are too often deceived into thinking the products they are purchasing are legitimate because the websites reside at familiar-sounding domain names and are complete with corporate advertising, credit card acceptance, and advertising links that make them appear legitimate."

"The Combating Online Infringement and Counterfeits Act will give the Department of Justice an expedited process for cracking down on these rogue websites, regardless of whether the website’s owner is located inside or outside of the United States," he said.

Leahy said that the law would allow the DoJ to ask the courts for an order to force a website's host effectively to disconnect the site from the internet by suspending its domain name. He said that the law will also seek to block access to foreign sites.

"Where the registry or registrar is not located in the United States, the Act would provide the Attorney General the authority to serve the order on other specified third parties at its discretion, including Internet service providers, payment processors, and online ad network providers," he said. "These third parties, which are critical to the financial viability of the infringing website’s business, would then be required to stop doing business with that website by, for example, blocking online access to the rogue site or not processing the website’s purchases."

The EFF said that tools already exist for copyright holders to use to combat online infringement, and that these measures would not be likely to help rights holders.

"The bill gives the government power to play an endless game of whack-a-mole, blocking one domain after another, but even a relatively unsophisticated technologist can begin to imagine the workarounds," said its statement. "To us, COICA looks like another misguided gift to a shortsighted industry whose first instinct with respect to the Internet is to try to break it."

Internet law expert Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the US law was the latest in a number that have tried to extend the powers of copyright holders to control access to content.

"This is the way that laws are increasingly going," he said. "We can see copyright holders asking for more influence over laws and for countries to exert more control over sites or networks suspected of enabling infringement, from the UK to France to elsewhere."

"The UK's Digital Economy Act contains a similar provision, allowing courts to order ISPs to block access to certain locations on the internet if they have been used, or even are just likely to be used, for copyright infringement," he said. "This is not in force yet, because further Regulations are needed, but the power is spelled out in the Act."

"The important thing about laws like this is that they must contain safeguards to ensure that any powers are used proportionately and fairly, but it seems as though those kinds of safeguards are missing from what we've seen of the proposed US law," said Robertson.

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