On November 18, 2010, the Senate Judiciary Committee unanimously approved COICA, a legislation that, if passed by the full Congress and signed by the President, would allow the Attorney General to commence a legal action to obtain injunction against the domain name of any website suspected of infringing copyrights or trademarks. It would also allow Attorney General to ban credit card companies from processing US payments to the website and forbid online ad networks from working with the website.
In particular, the Act would allow the Attorney General to seek a temporary restraining order, preliminary or permanent injunction against a domain name used by a website if the domain name is used by the website “dedicated to infringing activities”, i.e., if the website is “primarily designed, has no demonstrable commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to" infringe copyrights or trademarks and such infringing activities, if taken together, are "central to the activity” of the website. The definition is extremely broad and is met if the website includes "a link or aggregated links to other sites or Internet resources for obtaining access to” infringing products or services.
The injunctive relief can be obtained against the domain name registrar where the website is registered, the domain name registry which maintains the database of names for the target website’s domain, and any of the service provides or operators of network linked to the Internet. If the injunctive relief is obtained, the domain registrar, registry or service operator must suspend operation of the domain name, but can petition the court for relief from such order.
When initiating a legal action, the Attorney General must notify the domain registrant of the alleged violation and its intent to obtain injunction, as well as publish a notice of the action once the injunction is obtained.
The Act also gives the Attorney General the right to keep a list of websites that meet the definition of “dedicated to infringing activities” but which have not been the subject of suspension. A website owner would have to bring an action against the Attorney General in federal court to be considered for removal from such list.
The Act has been subject to a lot of criticism. One such criticism is that the Act violates the freedom of speech protected by the First Amendment. (See Law Professors’ Letter in Opposition to S.3804, signed by 51 law professors, available at http://www.eff.org/files). Another important criticism raised by the Letter is that domain registrars, registries or service providers will have “no information whatsoever concerning the allegations regarding the presence of infringing content at the target websites because they have no relationship to the operators of those websites; they are therefore in no position, and they have no conceivable incentive, to contest those allegations. The Act contains no provisions designed to ensure that the persons actually responsible for the allegedly infringing content – the operators of the target websites – are even aware of the proceedings against them, let alone have been afforded any meaningful opportunity to contest the allegations in a true, adversarial proceeding.” Additional objections have been raised in a Letter from NetCoalition.com (which represents Amazon, Bloomberg, eBay, Google, IAC, Yahoo!, Wikipedia and others), dated November 15, 2010, available also at http://www.eff.org/files.
According to Wired.com, “COICA is the latest effort by Hollywood, the recording industry and the big media companies to stem the tidal wave of internet file sharing that has upended those industries and, they claim, cost them tens of billions of dollars over the last decade. The content companies have tried suing college students. They’ve tried suing internet startups. Now they want the federal government to act as their private security agents, policing the internet for suspected pirates before making them walk the digital plank.” (http://www.wired.com/epicenter/2010/11/coica-web-censorship-bill).
In conclusion, the Act, if passed, may not pass judicial scrutiny given constitutional concerns. Also, financial burden resulting from business interruption and legal fees for some (especially smaller or lesser known) websites could be astronomical. Finally, there are already civil and criminal remedies set in place by current trademark or copyright laws, - is there really a need for such radical measures?