Tag Archives: COICA

COICA, trademark “McCarthyism” and hype

I have a list

All the things in that title — Trademark “McCarthy”ism — make for a perfect storm for pitching Martindale.com’s new podcast feature, “Martindale Mike”:

Title: COICA: McCarthyism 2.0?
About the Podcast: This episode takes a look at COICA, the controversial new act before the Senate Judiciary Committee. The acronym stands for “Combating Online Infringement and Counterfeits Act,” and if passed will authorize the Attorney General to seek injunctive relief against the web address or domain name of any website that is “dedicated to infringing activities” resulting in confiscation (“civil forfeiture) of the web address by the government and the shutting down of the site by the Internet Service Provider. It also requires the AG to maintain a public listing (AKA “a black list”) of sites that the Department of Justice believes are dedicated to infringing activities, but haven’t gotten around to filing injunctions against yet. While infringement is a major problem, which costs IP owners untold millions of dollars in lost sales every year. IP defenders argue that not providing mechanisms to prevent and prosecute infringement will de-motivate IP owners from creating works and allows blatant stealing. But does COICA just go to far?
About the Guest: Ron Coleman is head of the intellectual property practice at Goetz Fitzpatrick LLP, and author of the award winning blog Likelihood of Confusion.
McCarthy on Trademarks

I have a treatise

“Award winning”?  What, the ABA 100?  Yeah, that’s good enough not be be misleading, if you call that an award.  Anyway, the Mike part could be a play on words, which is a really trademarky thing — could mean, you know, a “mike,” as in microphone, but also does mean lawyer and interviewer Mike Mintz, “community manager” for Martindale.com, i.e., the guy tasked with helping drag old gold-standard stakeholder legal directory Martindale Hubbell into the late 20th century or maybe even better really fast.

Are there more double entendres in there too? Tell me if you think of one.  You know — McCarthy, blacklist, something… has a ring to it.

Listen to the podcast, by the way. I don’t say what you think I would about this.  But, ooh, the way I don’t say it!

COICA: Big IP supersizes it

Ron Coleman's LIKELIHOOD OF CONFUSION®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.”Ron Coleman's LIKELIHOOD OF CONFUSION®

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…