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Online Seizure and Counterfeit Bill: Burning the House to Roast the Pig

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Worldwide intellectual property infringement will not be crippled by legislation like the Combating Online Infringement and Counterfeits Act, (COICA) which sailed through the Senate Judiciary Committee earlier this week. While this bill has been touted as a way to combat counterfeiting online worldwide, its overly excessive means will surely cause harm beyond posing a threat to free speech.

A failure to take a "look before you leap" approach a decade ago with the Anticybersquatting Consumer Protection Act (ACPA) should provide a cautionary tale for a Congress seemingly eager to pass a bill with unintended consequences.

Domain name disputes and litigation exist in a legal environment with very few solid defenses for the "infringer" defendant, whether innocent, unintentional or willful. For sites that may legitimately be taking issue with a brand or a product, commonly known as "gripe sites," it is an uphill battle prior to measures like COICA being introduced. These suits are pursued under not only the Anticybersquatting Consumer Protection Act, but usually are coupled with allegations of copyright and trademark infringement under the Lanham Act.

It is hard enough for judges and juries to decide these issues and who is an "infringer" in what can turn out to be complex litigation under the ACPA. The factor-laden legal tests that are used are burdensome. The system proposed under COICA for handling infringers over certain domains and blocking access would certainly kowtow to the interests that paid in more ways that one for the passage of this bill.

In terms of other domain name players, it places a burden upon domain name registrars who are already in a precarious position when it comes to domain name litigation. They give up the "John Does" who own certain domains under private registration or find themselves subject to litigation under the ICANN Registrar Agreement. This added pressure would further complicate a system that already pits infringement allegations, even if frivolous and fishing expeditions for other purposes, against the personal privacy of those who own the domains.

The bill also presents a contradiction in terms of Congress' hands off approach when it comes to Internet regulation. Within the Net Neutrality debate, the telecommunications industry has continually argued that the content regulation instances undertaken by some ISPs have been so few and far between that there is no need for "internet regulation." Their corporate cousins are now arguing for regulatory measures that, in the view of many, are a more extreme threat to the idea of an "unregulated internet." COICA contains direct content-based measures that would affect free speech.

Few will argue that counterfeiting does not pose a serious threat to certain industries that face brand dilution and other consequences, but there are ways to address these practices that do not take such a large toll. A little more than 10 years ago, the Copyright Term Extension Act was subject to a similar debate in terms of interests like the MPAA and RIAA afraid of losing their global market share due to expiring copyrights. The result was a law with unnecessary, and in the view of some, unconstitutional extensions. It also had its day in the Supreme Court, which I suspect COICA would find a similar fate if it indeed does pass.

At the Web 2.0 Summit on Wednesday, former News Group President Peter Chernin commented that, at least in terms of digital content, people will pay for content if you provide it to them through a reliable service at a reasonable price. The old players in the content industry have yet to grasp the power of this statement. The cycle of control ran through copyright term extensions to the Digital Millennium Copyright Act to digital rights management measures to a state of affairs where it seems only the innovators in the content space understand the key to making money in the modern content industry. There are evolving concepts of ownership across the world and how to manage creative profitability, not just here in the United States.

COICA, much like the RIAA litigation strategy and the harsh series of other bills and tactics related industry interests have supported over the years, is yet another way of imposing an old system that no longer works. Industry visionaries, scholars, lawyers and even content consumers alike realize there is a better way to preserve creative incentives.

An entire generation has grown up having to battle their impressions of ownership they get from interests like industry associations they perceive as nefarious entities and the common sense notion that people should get compensated for what they create. In a generation of so many artists and entrepreneurs, the value of ownership is still strong. Yet, the disillusion with interests that bully their way through Congress and the courts is stronger. In the case of COICA, Congress shouldn't burn the house to roast the pig. There is too much to lose.

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