February 15, 2011 | By Abigail Phillips

What Congress Can Learn from the Recent ICE Seizures

“COICA”, Senator Leahy’s Combating Online Infringements and Counterfeits Act, is back. The Senate Judiciary Committee is scheduled to hold a hearing on "Targeting Websites Dedicated To Stealing American Intellectual Property" tomorrow morning.

As a reminder, COICA would give the government dramatic new copyright enforcement powers, most notably the ability to meddle with the Internet’s domain name system (DNS) and make entire websites effectively disappear, along with noninfringing content and lawful speech.

The bill’s main tool for targeting alleged infringement is suspension of domain names. We’ve gotten an early glimpse of how this provision might play out through recent enforcement efforts by U.S. Immigrations and Customs Enforcement (ICE) involving the seizure of domain names. The latest ICE action highlights an important point about COICA: the bill would take a seizure mechanism available under criminal copyright law and make it explicitly available in a civil context as well.

Earlier this month, ICE seized another ten domain names as part of an apparent ongoing strategy connected to its Operation in Our Sites project. Needless to say, we and others have lots of questions about ICE’s alleged bases for this action, some of which ICE revealed in the affidavit it filed in support of its seizure warrant application. Our most basic concern, however—and one which informs our concerns about COICA—is whether seizure is available for this kind of alleged infringement in the first place. U.S. law permits seizure of infringing materials, and tools for infringement, only in cases of criminal copyright. Does the affidavit establish “probable cause” (the standard of proof for seizure) to believe the domain names in question were used to commit a copyright crime? We don’t think so.

Criminal copyright infringement is infringement committed “willfully” and in the context of various specific circumstances. Significantly, the websites targeted in the most recent ICE action appear to have merely linked to infringing content. That is, they did not themselves violate any of the exclusive rights of copyright owners that would constitute direct infringement. The ICE agent who signed the affidavit explicitly states that the ten seized domains point to what he calls “linking” websites—i.e., websites that contain “links to files on third party websites that contain illegal copies of copyrighted content.” (He also points out that these linking sites “are popular because they allow users to quickly browse content and locate illegal streams that would otherwise be more difficult to find.” Sound like any search engines you know?)

The specific acknowledgment that the illegal copies reside on third-party websites seems to belie the claim that the targeted sites themselves are engaged in criminal acts. Furthermore, the ICE agent assumes that re-broadcasting of TV over the Internet is necessarily illegal, even though it is the subject of ongoing legal controversy.

This blurring of the distinction between criminal and civil remedies is a troubling example of how COICA would expand copyright enforcement to the detriment of the Internet’s continue growth as a platform for innovation and expression.

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