Cybertelecom Federal Internet Law & Policy An Educational Project

Intellectual Property :: Domain Name Blocking

Taking down websites / domain names on allegation (no judicial finding of) copyright infringing content. See activity of DHS Immigration Customs Enforcement (ICE) Opponents to SOPA and PROTECT-IP argued that it would disrupt DNSSEC.

The White House has opposed legislation which disrupts the Internet architecture, and Congress is indicating that the DNS blocking provisions of the legislation will be removed.

See also WHOIS (director information for domain names)

Stop Online Privacy Act SOPA

• Stop Online Piracy Act (SOPA) HR 3261
• Originally known at the E-PARASITE Act
• CRS Summary: SUMMARY AS OF:

  10/26/2011--Introduced.

  Stop Online Piracy Act - Authorizes the Attorney General (AG) to seek a court order against a U.S.-directed foreign Internet site committing or facilitating online piracy to require the owner, operator, or domain name registrant, or the site or domain name itself if such persons are unable to be found, to cease and desist further activities constituting specified intellectual property offenses under the federal criminal code including criminal copyright infringement, unauthorized fixation and trafficking of sound recordings or videos of live musical performances, the recording of exhibited motion pictures, or trafficking in counterfeit labels, goods, or services.

• note that this goes beyond the reach of the DMCA, which was limited in scope to copyright, to now reach trademark
• Supporters of SOPA argue that SOPA is only aimed at foreign sites, not domestic sites

Sets forth an additional two-step process (See DMCA Notice and Take Down) that

• allows an intellectual property right holder harmed by a U.S.-directed site dedicated to infringement, or a site promoted or used for infringement under certain circumstances, to first provide a written notification identifying the site to related payment network providers and Internet advertising services
• requiring such entities to
• forward the notification and
• suspend their services to such an identified site [within 5 days]
• unless the site's owner, operator, or domain name registrant, upon receiving the forwarded notification, provides a counter notification explaining that it is not dedicated to engaging in specified violations.
• Authorizes the right holder to then commence an action for limited injunctive relief against the owner, operator, or domain name registrant, or against the site or domain name itself if such persons are unable to be found, if:
  1. such a counter notification is provided (and, if it is a foreign site, includes consent to U.S. jurisdiction to adjudicate whether the site is dedicated to such violations), or
  2. a payment network provider or Internet advertising service fails to suspend its services in the absence of such a counter notification.

Requires online service providers, Internet search engines, payment network providers, and Internet advertising services, upon receiving a copy of a court order relating to an AG action, to carry out certain preventative measures including withholding services from an infringing site or preventing users located in the United States from accessing the infringing site. Requires payment network providers and Internet advertising services, upon receiving a copy of such an order relating to a right holder's action, to carry out similar preventative measures.

Provides immunity from liability for service providers, payment network providers, Internet advertising services, advertisers, Internet search engines, domain name registries, or domain name registrars that

• take actions required by this Act or
  
• otherwise voluntarily block access to or end financial affiliation with such sites.

Permits such entities to stop or refuse services to certain sites that endanger public health by distributing prescription medication that is adulterated, misbranded, or without a valid prescription.

Expands the offense of criminal copyright infringement to include public performances of: (1) copyrighted work by digital transmission, and (2) work intended for commercial dissemination by making it available on a computer network. Expands the criminal offenses of trafficking in inherently dangerous goods or services to include: (1) counterfeit drugs; and (2) goods or services falsely identified as meeting military standards or intended for use in a national security, law enforcement, or critical infrastructure application.

Increases the penalties for: (1) specified trade secret offenses intended to benefit a foreign government, instrumentality, or agent; and (2) various other intellectual property offenses as amended by this Act.

Directs the U.S. Sentencing Commission to review, and if appropriate, amend related Federal Sentencing Guidelines.

Requires the Secretary of State and Secretary of Commerce to appoint at least one intellectual property attache to be assigned to the U.S. embassy or diplomatic mission in a country in each geographic region covered by a Department of State regional bureau.

• Support:
  
  • Motion Picture Association of America,
    
  • the Recording Industry Association of America
  • Global Intellectual Property Center, US Chamber of Commerce
  • Reality Check: Dont be Fooled by Anti-IP Scare Tactics Oct 28, 2011

• Opponents
  • Congressional Response: Fighting the Unauthorized Trade of Digital Goods While Protecting Internet Security, Commerce and Speech, Draft framework for discussion, authored by: U.S. Senators Cantwell, Moran, Warner and Wyden and U.S. Representatives Chaffetz, Campbell, Doggett, Eshoo, Issa, Lofgren and Polis
  • Google
  • Facebook
  • Yahoo!
  • CEA
  • Justin Bieber
  • EFF
  • Going After the Pirates, NYT Editorial (Nov. 26, 2011)
  • Piracy vs the Open Internet, LA Times (Nov. 25, 2011)
  • Right and Wronged, Economist (Nov. 26, 2011)
• Criticisms
  • SOPA breaks DNSSEC.[PK]
  • DNS Blocking does not work; work arounds include
  • using actual IP number of site,
  • browser plugins, and
  • using DNS services outside of the USA (outside of SOPA's reach). [PK]
  • Due Process: 
  • Content creators get only 5 days to respond to the take down notice (barely enough time to even find an attorney)
  • It's a short cut to the legal system, allowing punishment without proof or evidence, and without consequences when copyright owners wrongfully file takedown notices. [PK]
  • Authorizes Attorneys General to shut down websites without due process.
  • Vague Definitions
  • SOPA targets sites that "facilitate" piracy.  This definition potentially includes all User Generated Content sites.
  • Nuclear Option:  Where the DMCA Notice-and-take down is aimed at the specific page where the infringing content is located, resulting only in that specific content being  removed, with SOPA, on sites large or small, one piece of allegedly infringing content would result in the entire website being taken down (the domain name would be blocked and its revenue would be turned off).  This is a sledge hammer solution. 
  • Collateral damage: This means that SOPA will cause significant collateral damage.  Imagine one YouTube video somewhere alleged as infringing content, the entire site is blocked, and all of the educational videos used by a school, or the User Generated Content videos of a national disaster, being not accessible.  
  • Basically repeals DMCA Notice and Take Down, as use of the SOPA remedies will replace the DMCA remedies [Goldman Nov 15, 2011]
  • It would destroy the User Generated Content industry.  With SOPA, there would be no YouTube and there would be no Facebook.
  • Cuts off revenue to websites without due process. Websites that have done nothing wrong will be losing 5 days of revenue per notice. [EFF Oct 28, 2011] [EFF Nov. 7, 2011]
  • Revenue sources can voluntarily cut off websites even without a notice. [EFF Nov. 7, 2011]
  • Disrupt business models
  • Because the increased risk of significant disruption of revenue, this will significantly decrease potential investment in new and innovative online services. (investment is premised on the promise and risk of ROI - where the risk that there will not be ROI goes up, then investment goes down)
  • Small firms innovating with User Generated Content could potentially get swamped with take down notices.
  • Abusive Take Down Notices: Content owners have established through the DMCA that they will send bogus takedown notices, with little repercussion. [EFF Oct 28, 2011] [Techdirt Nov 22 2011]
  • It creates blacklists of "rogue" websites, censoring those sites, creativity, expression, and innovation.  As such it is directly inconsistent with the State Departments Internet Freedom policy.
  • Cost Benefit Analysis
  • The cost of SOPA, as demonstrated above, would be devastating
  • The Benefit of SOPA, is less than clear.  The DMCA notice and take down regime is in place and is working.  The RIAA has claimed that it has piracy in check.  Those people who want pirated content will likely still be able to get it while those people who want legitimate content on legitimate services will likely find those services disrupted.
  • Solutions: Part of the problem of piracy is consumers who want to consume professionally produced content, but the content owners do not make the content available - or do not make it affordable.  This creates an incentive for those consumers who desire to consume the content to create their own solutions.  Where content owners have made their content available to consumers at an affordable price, piracy of content has significantly dissipated. 
  • The same platforms that enable piracy are the platforms that enable innovation -- and make the record production industries redundant. 
  • Greater enforcement does not result in decreased infringement. Historically, piracy has been resolved by new business models that makes content accessible and affordable. [Techdirt Nov 22 2011]
  • Economist Nov. 26: "The Social Science Research Council, an American non-profit body, found in a study this year “little evidence—and indeed few claims—that enforcement efforts to date have had any impact whatsoever on the overall supply [of pirated media].”"

News

• EFF
• SOPA: Hollywood Finally Gets A Chance to Break the Internet, EFF Oct. 28, 2011
• The Stop Online Piracy Act: A Blacklist by Any Other Name is Still a Blacklist, EFF Nov. 7, 2011
• Act Now: This Bill Serious Screws With the Internet, Public Knowledge
• Beth Marlowe, SOPA Debate: Why are Google and Facebook Against It, Washington Post
• Eric Goldman,
• I Dont Heart SOPA or Protect IP, A Linkwrap, Dec. 2, 2011
• Why I Oppose the Stop Online Piracy Act, Technology & Marketing Blog, Nov. 15, 2011

Protect IP

• S. 968: Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011

DNS Filtering for foreign websites hosting allegedly (no judicial finding of) copyright infringing content

• Leahy And Schumer Secure Funds To Prevent Shutoff Of Flood Gauges In Champlain Basin, January 15, 2012
• Comment Of Senator Patrick Leahy On Internet Service Providers And The PROTECT IP Act, January 12, 2012

Proponents

MPAA

George Ou

Criticism

Wyden, Ron. "Overreaching Legislation Still Poses a Significant Threat to Internet Commerce, Innovation and Free Speech" . Sovreign . Retrieved 28 May 2011

Law Professors Letter arguing that Protect-IP is unconstitutional (prior constraint)

PROTECT IP Technical Whitepaper Final Steve Crocker, David Dagon, Dan Kaminsky, Danny McPherson, Paul Vixie (May 2011)

The Undersigned (2011), Public Interest Letter to Senate Committee on the Judiciary in Opposition to S. 968, PROTECT IP Act of 2011 , pp. 1-2 , retrieved 2011-05-30

Halliday, Josh (18 May 2011). "Google boss: anti-piracy laws would be disaster for free speech" . The Guardian . Retrieved 24 May 2011 .

Siy, Sherwin. "COICA v. 2.0: the PROTECT IP Act" . Policy Blog . Public Knowledge . Retrieved 24 May 2011 .

Links

"Powell Statement Regarding Introduction of the PROTECT IP Act of 2011" . NCTA

COICA

Hearings

• "Targeting Websites Dedicated To Stealing American Intellectual Property" Senate Judiciary Committee Full Committee DATE: February 16, 2011 TIME: 10:00 AM ROOM: Dirksen-226
• The Honorable Ron Wyden Statement for the Record U.S. Senate Committee on the Judiciary Hearing "Targeting Websites Dedicated To Stealing American Intellectual Property" February 16, 2011

Bill Introduced: H.R.1689 To provide support to combat illegal downloading on college and university campuses., Open Congress 6/15/2007

Government Enforcement (ICE DHS)

Derived From: 2011 US Intellectual Property Enforcement Coordinator Joint Strategic Plan, One Year Anniversary, June 2011

"ICE and DOJ Launched Innovative Operations to Seize Rogue Websites

"Last June, ICE and the IPR Center, in coordination with DOJ, launched an ongoing law enforcement operation – Operation in Our Sites – to seize domain names of websites offering counterfeit products or pirated content, both of which are illegal actions which could be used to finance other criminal behavior in addition to posing certain safety risks. To date, there have been five operations targeting 125 websites.

"Consumer Education Efforts on IPR Infringement Spread to the Internet

"As a result of DOJ and ICE’s trailblazing work against rogue websites, domain names seized pursuant to court order display a banner announcing the seizure of the site by the Government and an explanation of the federal crime and punishment for copyright theft and distribution or trademark violations. Since the initial seizures in June 2010, there have been more than 50 million hits to the banner notifying viewers a Federal court order has been issued for the domain name and educating them that willful copyright infringement is a Federal crime. After the seized domain names are forfeited to the U.S. Government, a new banner is placed on the sites notifying the public that the sites have been forfeited. Also, the Center for Safe Internet Pharmacies discussed above has consumer education as one of its four major principles. And DOJ is funding public awareness campaigns on the risks to the public of purchasing counterfeit goods. 

"International Efforts Supported Online IPR Enforcement

"In May, the Group of Eight (G8) released a final declaration, in which they jointly announced their commitment to protect intellectual property rights on the Internet and to take “effective action against violations of intellectual property rights in the digital arena, including action that addresses present and future infringements.”

"In June, in association with Operation In Our Sites, several U.S. law enforcement agencies worked cooperatively with Dutch law enforcement authorities to seize an image a server in the Netherlands being used to facilitate the unauthorized reproduction and distribution of copyrighted material. That same month, the FBI worked with Latvian authorities to arrest and to extradite a trafficker of counterfeit gaming machines, and in August, the trafficker and his partner were each sentenced to two years in prison and ordered to pay $151,800 in restitution.

"In October 2010, Operation Pangea III targeted the online sale of counterfeit and illegal medicines across 45 countries and resulted in world-wide arrests and seizures of thousands of potentially harmful medications. During this operation, the U.S. coordinated with the WCO, INTERPOL, and others. 

Government Releases

• Fact Sheet Websites Seized During the Eight Phase of Operation in our Sites, ICE Nov. 28, 201
• MANHATTAN FEDERAL COURT ORDERS SEIZURES OF SEVEN WEBSITES FOR CRIMINAL COPYRIGHT INFRINGEMENT IN CONNECTION WITH DISTRIBUTION OF PIRATED MOVIES OVER THE INTERNET  June 30, 2010

Caselaw

Chanel, Inc. v. Does, et al., 11-cv-01508-KJD-PAL (D. Nev.) (Sept. 26, 2011 Order) (Oct. 11, 2011 Order) (Nov. 14, 2011 Order) (affirms seizure of domain names on accusation of sale of counterfeit goods)

Venkat Balasubramani, Courts OKs Private Seizure of Domain Names Which Allegedly Sold Counterfeit Goods, Technology & Marketing Law Blog Nov. 28, 2011

White House

• Obama Administration Responds to We the People Petitions on SOPA and Online Piracy 2012
• Combating Online Piracy While Protecting and Open and Innovative Internet, Official White House Response to Stop the E-PARASITE Act. and 1 other petition
• While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.
• Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small
• We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet.
• 2011 US Intellectual Property Enforcement Coordinator Joint Strategic Plan, One Year Anniversary, June 2011

News

• The Definitive Post on Why SOPA and Protect IP are Bad, Bad Ideas, Techdirt, Nov. 22, 2011