Everything I’ve written about here for the last five years, or just about everything, is about to get a lot worse, explains David Post:
Congress is set to once again consider the Sen Leahy’s Combating Online Infringements and Counterfeit Act, a truly awful bill (with the appropriately awful acronym “COICA” . . . ). I have written a (relatively brief) “Law Professors’ Letter in Opposition,” which now has about 35 signatories, which you can read here. [There’s a summary of the bill’s provisions in the Letter — and the full text of the current version is posted here]
The bill would allow the Attorney General to institute an in rem action against the domain name of any Internet site “dedicated to infringing activities” — defined to include any site that “engages in” copyright or trademark-infringing activities where those activities, “taken together,” are “central to the activity” of the site. The court would then be authorized to issue injunctions — not against the offending website, but against “the domain name” itself — ordering the domain name registrar where the target site’s domain name was registered, and the domain name registry responsible for maintaining the authoritative database of names for the target site’s top-level domain, to “lock out” the domain name (and therefore prevent access to the site through use of the domain name). The court could also enjoin any of the thousands of Internet Service Providers, or any “operator of a nonauthoritative domain name server” (a category that includes virtually all ISPs or operators of networks linked to the Internet), ordering them to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.”
It’s awful on many fronts. It would allow a court to effectively shut down a site operated out of Brazil, or France, without any adversary hearing (unless, I suppose, “the domain name” itself comes into court to argue the case) or any reasoned determination that the site actually is engaged in unlawful activity. There is a name for that in our law: “prior restraint,” and we don’t like them — even in cases where truly compelling governmental interests are at stake, let alone where the purpose is merely to protect the rights of copyright and trademark owners.
The fact is, these proposals are reactions to real problems. But in typical piggy fashion, Big IP wants to use a sledgehammer where perhaps some fine carpentry would do.
Now learning how to build things right — even radically different things, but things that will stand up — takes hard work, diligence and practice, and not just everyone can be a cabinet maker. The IP enforcement community, however, is flummoxed. They don’t want to spend the money on craftsmanship; they want the big, wide problem of IP enforcement to be amenable to solution by journeymen. This reaction is understandable, considering how expensive the work of master can be — and often, how little there can be to show for it.
Consider, for example, Gibson Dunn & Crutcher: As elite a litigation department as you can think of (unless perhaps you’re in Montana, but who cares about flyover country?) and leaders in IP-enforcement litigation. What has this leadership achieved for its clients? Read More…