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If Proposed Bill Becomes Law, ISPs May Be Forced to Censor the Web
September 20, 2010
Thomas Mennecke
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There's a lot of talk lately about the "Combating Online Infringement and Counterfeits Act" - and for good reason. It's a proposed draft bill that if signed into law, would give the US Attorney General and the Department of Justice enormous powers to deal with websites that promote copyright infringement. One possible form of judicial relief would have ISPs take "reasonable measures" to block foreign sites from resolving within the United States.

You may wonder what constitutes a website that promotes online infringement. The bill gives a rather broad definition, including websites that link to other resources - like a BitTorrent search engine. Here are some of the keywords/phrases the bill uses to describe an infringing website:

"...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"

Once a site falls prey to the judicial system, and with a court order, relief can be sought against the infringing website - in other words, punishment. What remedies are at the government's disposal? These options are categorized for both foreign and domestic websites.

With a court order, the US Attorney General can easily have a domestic website shut down and the domain locked. Domestically, the bill really doesn't break any new ground. It's no secret that websites like ElieteTorrents or LokiTorrents were seized by the US DOJ with many of the same powers covered in the proposed bill. So in that respect, the bill is a bit dull. But wait, there's more.

Let's move onto the foreign websites. That's where things get interesting. Obviously, the US Government can't seize a foreign website - although it exerted its influence especially with regards to The Pirate Bay raid in 2006. If this bill passes intact, ISPs may be forced to block foreign websites deemed infringing by the powers that be.

"...a service provider, as that term is defined in section 512(k)(1) of title 17, United States Code, or other operator of a domain name system server shall take reasonable steps that will prevent a domain name from resolving to that domain name’s Internet protocol address..."

That's very heavy oatmeal right there. So if the US Attorney General's office one day decides that The Pirate Bay is an infringing website, with a court order they could have ISPs block the site from resolving in the US. Welcome to the Great US Firewall.

We have a hard time seeing this portion of the bill become law - especially since it spits in the harbor provision's face. The DMCA (Digital Millennium Copyright Act) safe harbor provision grants immunity to ISPs and protects them from any illegal activities that may transpire across their networks. If the ISPs want to keep that safety net, opposing the passage of this bill would be a positive first step.

There are serious 1st Amendment issues as well. Just about every popular BItTorrent website is fueled by a vibrant community that typically gather in bulletin board or forum settings - and we wonder if that will be taken into consideration when this bill is discussed in the great halls of democracy.


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