Senators Propose Changes to Website Takedown Bill

Leaders of the U.S. Senate Judiciary Committee have circulated proposed changes to a controversial bill that would force domain name registrars to shut down websites that allegedly infringe copyright, but the tweaks don't go far enough for some critics.

The proposed amendments to the Combating Online Infringement and Counterfeits Act would strike provisions in the bill that would allow the U.S. Department of Justice to create a blacklist of infringing websites, according to information from the Judiciary Committee. The changes would also lessen the requirements that Internet service providers and payment processors must take against infringing websites.

But the proposed amendments circulated by sponsors of the bill would not change provisions allowing the DOJ to obtain court orders requiring domain name registrars and registries to shut down websites "primarily designed" to offer infringing products, as determined by the DOJ.

That provision of the bill would trample free-speech rights, critics have said. Even websites that offer infringing products will likely have other Web content that's protected by the First Amendment of the U.S. Constitution, say critics, including the Center for Democracy and Technology (CDT), the Electronic Frontier Foundation and the Computer and Communications Industry Association (CCIA).

Other critics of the bill included more than 80 Internet engineers, including David Reed, who helped develop TCP/IP, and Paul Vixie, author of BIND, the DNS server software.

"If enacted, this legislation will risk fragmenting the Internet's global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure," the engineers' letter said. "In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties' ability to communicate."

Even with the proposed changes, the bill is still "fundamentally a censorship bill," said Ed Black, CCIA's president and CEO. The bill will encourage other governments to attempt to shut down websites for other reasons, he said.

"It will set an international precedent ... that says it's a good thing for governments to effectively seize websites," he said. "We think that's not a precedent that anyone should be setting, especially not a government that's founded on the First Amendment."

Black questioned why sponsors, including Senator and Judiciary Committee Chairman Patrick Leahy, were trying to push the bill through the committee without hearings. Leahy, a Vermont Democrat, introduced the bill Sept. 20, and the committee, without hearing from outside witnesses, was set to debate the legislation Thursday, if the Senate is still in session. As of late Wednesday, it was unclear if Senate leaders would recess to allow senators to campaign for the elections in November.

"It's hard not to ask yourself, 'why rush this in the closing days of the session?' when, in fact, you can have more examination and hearings," Black said. "What is it about this that makes people want to push it through?"

Leahy's office defended the bill, noting that many organizations support it. Among the organizations supporting the bill are the Association of American Music Publishers, the U.S. Chamber of Commerce of the United States of America, the Motion Picture Association of America, and the Software and Information Technology Association, Leahy's office said.

The bill will "enable law enforcement to pursue websites that are solely dedicated to infringing activities, giving prosecutors the tools to shut down the 'worst of the worst' online infringers," Leahy's office said in a statement. "These websites harm the American economy, deprive American intellectual property owners of their rights, and cost American jobs."

On Wednesday four organizations, including the Directors Guild of America and the Screen Actors Guild, sent a letter to the committee in support of the legislation.

"The opposition to this legislation ... will forgo protecting the American consumer from giving credit card and personal information to illegal entities in return for a lawless Internet," the letter said. "They will turn a blind eye to the looting of one of the strongest American industries by profiteers who contribute nothing to our economy or our culture. And they -- most of whom do not create jobs themselves -- will be willing to sacrifice the jobs of our members and the thousands of others who depend on the entertainment industry to make a living."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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