The United States Takes Center Stage in the International Fight against Online Piracy & Counterfeiting

Article excerpt

On September 20, 2010, U.S. Senators Patrick Leahy (D-Vermont) and Orrin Hatch (R-Utah) introduced the most far-reaching and comprehensive U.S. legislation to date aimed at modernizing intellectual property rights regulations and combating online piracy and counterfeiting: The Combating Online Infringement and Counterfeits Act ("COICA" or "the Act"). (1) With the recent U.K. adoption of the Digital Economy Act (2) and the French adoption of The Creation and Internet Law, (3) the world has hotly anticipated a U.S. response to online copyright infringement. COICA, the latest effort by Senators Leahy and Hatch to advance intellectual property legislation in the United States, could be a vital part of the eventual U.S. response. (4)

COICA would provide the Justice Department with the tools necessary to monitor and terminate websites that promote or provide access to the unauthorized downloading, streaming, or selling of copyrighted material and counterfeit goods. (5) Such goods include movies, music, software, and pharmaceuticals. (6) Currently, the policing of such "rogue websites," many of which are foreign-owned and operated, is difficult: The websites are often maintained by vast global piracy networks, and those piracy networks have been tolerated--and sometimes protected--in China, India, Russia, and even Canada. (7)

Intellectual property theft costs the U.S. economy more than $100 billon each year. (8) More than $20 billion of the annual loss is attributable to the piracy of copyrighted movies, music, and other entertainment. (9) Digital media piracy is so prevalent that as few as one in three music CDs and one in twenty music downloads are sold legitimately worldwide. (10) In 2002, between 400,000 and 600,000 movies were illegally downloaded every day. (11)

COICA would provide U.S. anti-piracy enforcement agencies with increased power to combat websites "dedicated to infringing activities." (12) The Act would give "teeth to the Justice Department for enforcement by expediting the process for cracking down on websites that are dedicated to making infringing goods and services available." (13) Specifically, the Act would grant the Attorney General authority to issue temporary restraining orders, preliminary injunctions, or injunctions against websites determined to be "dedicated to infringing activities." (14)

Moreover, COICA would grant the Attorney General authority to commence an in rem action against a domain name used by an infringing website. (15) COICA would allow such actions to be brought (1) in the United State's jurisdiction where the domain name registrar or registry is located, or (2) in the District of Columbia for websites registered outside the United States. (16) This latter provision allows the Justice Department to prevent the importation of infringing and counterfeit goods. (17) For example, if a foreign-registered website were participating in infringing activities, the Justice Department would be able to act against third-party Internet service providers ("ISPs") payment processors and ad network providers--all of which would likely be critical to the infringing websites financial viability--by, among other things, "blocking online access to the rogue [website] or not processing the website's purchases." (18)

COICA's introduction comes in the midst of U.S.-led negotiations for a plurilateral multinational agreement establishing international standards for intellectual property rights enforcement: the Anti-Counterfeiting Trade Agreement ("ACTA"). (19) To date, almost forty countries have agreed to ACTA's guidelines for reducing online intellectual property theft, e.g. counterfeit goods, generic medicines and copyright infringement. (20) Similar to the COICA, one of ACTA's major prongs addresses "Intellectual Property Rights Enforcement in the Digital Environment." (21) Because key U.S. role in drafting ACTA, COICA would effectively provide a mechanism for U. …