12.1.10 DOO PROCESS

this article originally ran in the 12.2.10 issue of Metroland

Over the last couple weeks there’s been a proposed law bouncing around Congress named the Combatting Online Infringement and Counterfeits Act (COICA) that would authorize the federal Department of Justice to block any website that was determined to be "primarily designed" and "has no demonstrable, commercially significant purpose or use other than" to promote copyright and trademark infringement.

My understanding is that the bill would allow the Feds to generate a blacklist of domain names and forbid your ISP from transmitting sites associated with that domain name to you. Mostly, this appears to be aimed at foreign sites that are now beyond the reach of U.S. law—operators of websites in the U.S. can and are simply be sued for infringement, so COICA’s not about homegrown sites. Rather, COICA would allow a block, basically at our borders, of websites that the Feds convince a court is dedicated to infringement. Note that the law doesn’t target the operators of foreign sites or even the content of the sites that are out of U.S. jurisdiction—it just allows U.S. users’ access to those sites to be blocked.

I wasn’t paying a whole lot of attention to this because I’ve been insanely busy with other stuff, and because the reports I’d been reading indicated that COICA wasn’t likely to get through our profoundly-dysfunctional-and-getting-worse Congress. Also, the whole thing was a little bit too geeky for me to easily get my brain around.

But it was irksome—the law would give the government sweeping powers that would change the landscape of the internet in the US. You know how we all click our tongues dismissively when we learn that some Asian country has blocked YouTube, or Facebook, or Google? That’s the arena we’d be getting into. Wholesale blocking of sites that the Feds convince some judge lacks a “demonstrable, commercially significant purpose.” I’ve seen those arguments used, here and recently, by Big Media trade associations, against the likes of YouTube and Google. Take this COICA law, add a Christianista / Tea Party executive branch and a bunch of Federalist Society judges and voila, you’ve got a sanitized internet. Just like in China. Look at the buffoons that are dominating public discourse these days. It can happen here.

Looked at another way, if you consider a web domain to be like a newspaper, a television station, or any other media outlet, then this law condones outright censorship, period.

And then last week COICA was passed unanimously by the Senate Judiciary Committee, after the MPAA, the RIAA, Nike, Nintendo, the U.S. Chamber of Commerce, unions, media, and everybody else in the business world landed on the members with a bunch of ginned-up statistics and horror stories. These fine American business interests also took special care to brand anyone opposing the bill, like civil libertarians and free speech advocates like Public Knowledge and a host of academics, as un-American coddlers of online thieves. So what Senators voted for the bill? Well, folks Jeff Sessions, Tom Coburn, and John Kyl. And folks like Al Franken, Dianne Feinstein, and Chuck Schumer.

Wha? Really? Still, most commentators were saying the bill would likely not get through the entire Senate and certainly wouldn’t make it through the House. So OK, maybe all these Senators were just quietly making sure that their corporate contributors were placated on a vote that ultimately was meaningless.

But Al Franken?

Anyway, on the heels of this vote came news late last week that the Department of Homeland Security had seized 80+ domains that were suspected of infringing activity. This caused a huge WTF all over the bloggosphere because nobody could figure out (1) how the hell DHS did it and (2) since they did it, why we needed this COICA law. Then there’s the persistent question we’ve talked about here before—just what the hell is Homeland Security doing chasing music file-sharers and handbag counterfeiters when there are people out there who really want to blow us up?

The dust hasn’t really settled yet, but so far this seems to be the story. DHS hired a private contractor to figure out a way to convince a judge to order the “seizure” of a bunch of domain names that pointed to a bunch of sites that appeared to have something to do with infringement. The sites that were seized were all .com and .net domains, and there was jurisdiction because the company that oversees .com and .net sites, Verisign, is a U.S. company. Verisign chose not to fight the court orders. Adios, domains! Many of the foreign companies that lost domains have already adopted .info sites and have continued operating, apparently out of the jurisdiction of the court order.

Questions remain, though, because some of the sites, particularly a couple music sites, don’t appear to be directly or primarily involved with infringement. In fact, two of them, the hip-hop blogs RapGodFathers and Onsmash, regularly post tracks and mix-tapes at the request of artists and labels. I’m guessing DHS didn’t tell the judge about this.

But the bottom line is that government is helping business by restricting speech. Where I come from, that’s a hallmark of fascism.