Combating Online Infringement and Counterfeits Act: A Lesson in the Legislative Process

I’ve picked up on this piece to illustrate and support the common notion that public discussion and transparency do in fact help to bring about sensible legislative and policy decisions, and there really shouldn’t be a doubt that important legislative changes must go through a consultation process, with as much public participation as possible before it is concluded.

The post deals with the recent controversy surrounding the Combating Online Infringement and Counterfeits Act (COICA) which is a proposed bill in the US and was passed by the Senate Judiciary Committee this week.

What is the Combating Online Infringement and Counterfeits Act?
It is a bill which essentially creates an Internet blacklist for sites that are deemed to be ‘dedicated to infringing activities’. If passed, the Attorney General will have the power to bring court action against such websites with the result that the registrar of the domain name would be court mandated to suspend access to and lock the domain name. The thrust of the legislation is ostensibly copyright enforcement, but in truth could operates as a government-run censorship tool.

How does the COICA blacklist websites?
There appears to be a three-fold approach to ‘combating’ such websites:

1. When a website facilitating copyright infringement is identified, the operator of the Domain Name System server is expected to take reasonable steps to prevent the domain name from resolving to that domain name’s Internet Protocol address (IP address) Essentially, the government can blacklist a website from the Domain Name System (DNS).

All of this appears terribly technical, so I will briefly try to explain what this. When you type in http://www.google.com in your address bar, the Domain Name System essentially ‘translates’ the letters into a string of numbers like 72.168.100.4 which is its IP address, so that the Google homepage is served to you. Obviously, it is impossible to remember the IP addresses of each and every website so this process of converting a URL to IP address is essential to viewing a website. To put it simply, once a website is blacklisted by means of this Bill, this translation is prevented and access is denied, which is exactly what the US government hopes to achieve.

[As a side-note, for anyone interested in understanding the fundamentals of Internet technology, explained simply and beautifully by the folks over at Google, I recommend a reading of 20 Things I Learned About the Browser and the Web, which explains the intricacies of web technology in comic-book form and provides a run-down on several concepts that I personally found very informative and useful in understanding the interface between the internet and copyright issues.]

1. The Bill will also strike at the root of the operation of such websites by blocking credit card transactions on these websites.

1. Continuing with the effort to strike at such websites financially, the Bill proposes to prevent advertisements from being displayed on blacklisted websites. This is a clear message to services like Google AdWords that the onus is on them to prevent contextual advertisement from being displayed on such sites.

What are the problems with the COICA?
While several of our readers have often voiced their concerns that online piracy and copyright infringement is an issue that need immediate attention, and rightly so, I point out a few reasons, which several consumer groups and activists have also noted, for why the COICA requires a rethink and it not the way to go about solving the problem of copyright violations on the internet

• The COICA severely restricts innovation and technological creativity by providing a legal foundation to completely blacklist and block access to a website for allegedly containing infringing content. We need to develop technological models that accommodate the changing trends in digital distribution of content, not a legislation that hinders its very development.
• In the US context, this is a clear constitutional violation of the First Amendment and in general, any legislation that provides the government with the absolute right to just shut down access to websites will not pass the stage of judicial review and will be see as clear violations of the freedom of speech and expression.
• The DMCA already provides for legal remedies for instance of copyright violations, so what is the need for another anti-piracy legislation? I find it amusing that right after the ACTA debacle, where the US paraded a Big Brother legislation as a counterfeiting treaty, they would attempt to disguise a censorship legislation as an anti-piracy one.

How has public scrutiny helped block passage of the Bill?
With news of the COICA trickling in, internet forums, blogs and mainstream news services, reported the disastrous effects of such a legislation. A list of Senators that supported the legislation was published, which indicated the nexus between commercial interests and the government and that set the ball in motion. Almost immediately, one Senator, Ron Wyden declared that he was going to “take the necessary steps to stop [COICA] from passing the United States Senate”. This is clearly not an empty promise and we are all fully aware of a Senator’s ability to block the passage of a Bill in the Senate. In this case at least, the intention is honest.

What are the lessons for the Indian legislative process?
The first thing that comes to my mind is that the Indian legislative process, especially on highly technical matters, requires greater public consultation and conference with civil society organisations, consumer groups and technical experts and most importantly, an alert and aware public.

For example, the Information Technology (Amendment) Act, 2008, not least for its similarity with the COICA, immediately comes to mind. It is amply clear that greater discussions on S.79 and S.81 were required, since they continue to be a source of deep confusion. Further, I find it very discomforting to recollect how easily the IT Amendment Act was passed without any legislative debate whatsoever in Parliament. There was very little public discussion about the nuances involved in fixing liability for internet intermediaries for copyright infringement and that might explain the prevailing confusion on that aspect.

More importantly however, the very process of legislative change in India on internet and intellectual property related issues makes me question whether mainstream news services would carry a piece, if a COICA-like legislation was to be introduced in India.

Would an Indian version of an internet-blacklist, censorship-allowing legislation if introduced, face the same amount of public scrutiny and backlash as was witnessed in the US or would it just slip under the radar and be criticised only after its passage? Perhaps I am being unfair to the countless organisations and groups that work tirelessly on such issues. But I still can’t be a hundred percent sure.