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The Case Against COICA

In September, digital rights advocates and Internet engineers helped to delay the Combatting Online Infringement and Counterfeits Act (COICA), a terrible bill that would have allowed the Attorney General to censor the Internet in the name of copyright enforcement. Now that the November elections are over, COICA is back on the Senate Judiciary Committee schedule for markup this Thursday and could pass out of committee during the “lame duck” session of Congress.

To recap, COICA gives the government dramatic new copyright enforcement powers, in particular the ability to make entire websites disappear from the Internet if infringement, or even links to infringement, are deemed to be “central” to the purpose of the site. Rather than just targeting files that actually infringe copyright law, COICA’s “nuclear-option” design has the government blacklisting entire sites out of the domain name system — a reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech.

Despite some amendments at the end of last session, COICA remains disastrously bad. Here are some of the reasons why:

This bill won’t help creators get paid when their work is distributed online. In fact, it will do the opposite. The best way to help artists of every stripe get compensated for their work is to make sure that there is a thriving marketplace of innovative digital businesses to pay them. We already have examples of businesses like Pandora, YouTube, and Amazon Music that are paying real money to artists. And new innovators are heatedly working to create new services that will allow artists to engage fans and raise revenue in new and exciting ways. (See: Kickstarter, Bandcamp, Topspin, CASH Music, Flattr, Choruss, and the list goes on.)

But the next generation of these businesses is seriously threatened by this bill, which will be used by Hollywood and the music industry to kill websites that they regard as too unrestrictive. Had COICA been law five years ago, platforms like YouTube might not exist today. The YouTube of 2006 and 2007 offered a home to an unprecedented explosion of artistic creativity. But users also uploaded lots of unlicensed video, and a court could well have been persuaded that infringement was “central” to its purpose. YouTube would never have been able to grow to the point where it could strike deals with the big media companies if it had been blacklisted at the outset.

Instead of passing dangerous anti-innovation bills like COICA, Congress should be working to clear the licensing roadblocks that make it hard for new businesses and new models to emerge, thrive, and pay creators.

This is a censorship bill, with a blacklist and everything. Hollywood’s previous adventures with blacklists were a dark period in American history. This time, it’s not people suspected of being too communist, it’s websites suspected of being too “piratical.” Senator Leahy is leading the government into the swamp of trying to decide which websites should be blacklisted and which ones shouldn’t, and they’re going to discover that the line between copyright infringement and free political speech can be awfully murky.

The Digital Millennium Copyright Act’s (DMCA) copyright enforcement provisions give copyright owners the relatively narrow power to remove just their copyrighted content from a website. Even then, there have been numerous mistakes, mishaps, and abuses of that narrow takedown system to censor legitimate speech online. Now imagine the mistakes, mishaps, and abuses we’ll see with COICA’s broader, government-initiated, domain-wide takedowns.

The bill will undermine the Internet’s Domain Name System and massively increase data traffic costs. As Internet engineers warned in an open letter in September, COICA will cause serious long-term problems for the Domain Name System (DNS), which translates names like “www.foxnews.com” into IP addresses like “216.35.221.76”. Today, there is very little controversial censorship occurring in the global DNS, though countries like China and Iran are exceptions. If the United States government begins to use its control of critical DNS infrastructure to police alleged copyright infringement, it is very likely that a large percentage of the Internet will shift to alternative DNS mechanisms that are located outside the US. This will cause several indirect but serious problems:

  • Inconsistencies between the current official DNS hierarchy and the new censorship-free alternatives. As new domains are added to the official hierarchy, propagation delay inconsistencies will inevitably cause non-blacklisted websites to be unreachable at various times.
  • Currently, almost all high-traffic websites use content delivery networks like Akamai, Limelight, EdgeCast and AmazonAWS to ensure that data never has to travel long physical distances over the network before it gets to your web browser. Because COICA will lead to the widespread adoption of encrypted offshore DNS and other tunneling systems, it will get harder for CDNs to send clients to the right server. Instead of connecting to a data center in their own US city, people will be just as likely to connect to one in Europe or Asia. While modeling is urgently required to establish the precise consequences, this effect could easily result in an increase of 20% or more in the cost of Internet backbone infrastructure.
  • Cybersecurity problems will grow.Currently, ISPs are in a position to keep DNS servers well-maintained and secure, to the benefit of their users. As a large percentage of the population moves to encrypted offshore DNS — to escape the censoring effects of the procedures outlined in COICA — those alternative DNS systems will become targets for security attacks. COICA will also complicate the urgently needed process of DNSSEC deployment.

The bill is an unconstitutional restriction on freedom of speech and a threat to innovation. When a domain is taken offline, everything on that domain is taken offline, including non-infringing speech and valuable innovation.

Under current law, Hollywood already has powerful tools to police online infringement, such as the DMCA takedown process, that were the result of years of negotiation and include protections against abuse. COICA, by contrast, is being pushed though without adequate review or attention to its dangerous effects.

This bill does not merit passage to the full Senate. Neither the Judiciary Committee nor the entertainment industry should be standing behind legislation that meddles so deeply with the Internet’s architecture and is so broadly hostile to freedom of speech and innovation. Instead, we need to focus on clearing the licensing roadblocks that are preventing businesses, new and old alike, from offering any paid, legal services that are as comprehensive as the allegedly infringing ones.

This article was written by Peter Eckersley of the Electronic Frontier Foundation.

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