I’ve signed on to a ‘Professors’ Letter’ regarding the Combatting Online Infringements and Counterfeits Bill (COICA), legislation about to be debated in the US Congress. This post is a brief explanation of my approach to this issue and why I signed the letter. You can read its full text here.
The first point is that I am concerned about the impact on the legislation on the regulation of the Internet. The approach proposed in the Bill is very different to that adopted in the US, or indeed in many other jurisdictions, and it’s not appropriate for this major leap to be made without proper scrutiny, if at all. The Bill would allow actions to be brought against ‘domain names’ (at least), including both registrars and registries, where a website is ‘dedicated to infringing activities’, i.e. alleged copyright and trademark violations. This is a complete change to the purpose and operation of the domain name system. If it wasn’t so serious, it would be amusing after years of the US government arguing against over-regulation and international control of ICANN. The method of doing this is messy too, as domain names are very frequently shared between multiple uses, meaning that one action would unavoidably prevent access to unrelated materials. We’ve already seen some actions against domain names in the US – and indeed, the practice is growing in the UK, even with quite informal approaches as in the Fitwatch issue highlighted this week. This legislation would take this and go many steps beyond, all at once.
Of course, as the letter points out, websites from around the world use registrars or registries in the US – particularly for generic top-level domains like .com. Although there is a limitation to situations where the site ‘conducts business directed’ to the US, we know well that the threshold for direction can be quite easy – and remind me of this the next time a legislature in the US passes a ‘Libel Terrorism’ statute. In practice, this statute will affect websites and service providers the world over, and so it’s important that a genuinely international response be heard. I often receive requests or circulars about amicus briefs, joint letters and so on, but while many are interesting, I’m reluctant to intervene in a situation of US law where I don’t know enough details and the influence of foreign scholars is meaningless or indeed counterproductive. This is my second point: a unilateral step of this nature will affect Internet activities far beyond the US. And so, the letter includes signatures from UK-based scholars, including Konstantinos Komaitis at Strathclyde, and other jurisdictions too, such as Kim Wetherall at Queensland and Cedric Manara at EDHEC in France.
My final point is the quality of the argument and why this type of response is so desperately needed. The letter has been drafted by David Post, a professor at Temple University in Philadelphia, known to many readers as one of the first ‘cyberlaw’ scholars and – more recently – author of the fabulous In Search Of Jefferson’s Moose. There are situations where I would depart from Post’s published views on this question or that, and I tend to set a high bar before I put my name to a letter I support part but not all of, but in this case the letter sets out a straightforward, persuasive, well-researched, and very reasonable explanation as to the very serious problems with COICA, and I am just as concerned about the problem as he is. I hope that the letter will be taken seriously – it might not be obvious to some, but the range of views on Internet law covered by the signatories is very broad (i.e. it’s not ‘just’ a particular group of cyberlibertarians, far from it), and this issue deserves far more attention than it is getting.