“The Net interprets censorship as damage and routes around it,” claims Gilmore’s Law. Could the US really censor copyright infringers off the internet? On the surface, yes. In reality, no.
The Combating Online Infringement and Counterfeits Act would empower the courts to determine whether internet sites are “dedicated to infringing activities” and either doing business with Americans or harming the intellectual property of Americans. If they are, the courts would be able to order domain name registrars and internet service providers (ISPs) to “suspend operation of, and lock” the domains involved.
If that happened, the domain name system (DNS) would no longer translate — or ‘resolve’, to use the correct technical term — the domain examplepirate.com into a numerical internet protocol (IP) address. Type examplepirate.com into your web browser and you’d get an error message.
While the US controls the generic top level domains of .com, .net, org and so on, the servers that do the resolving are scattered across the planet and are largely under local control. This is how China, for example, can block access to Twitter. And national registries for the country code top level domains like Australia’s .au are also run locally.
But US courts could simply order those international registrars to comply. Most would presumably cave in rather than face lengthy litigation in Washington, especially if they’d signed up to some sort of anti-counterfeiting treaty.
IANAL, but there would seem to be a precedent for this kind of action, even without the new law. Microsoft has successfully used the courts to shut down 276 domains registered in China that were associated with the Waladec botnet by claiming that harm was being caused to its customers — although in that case the harm was spam rather than copyright infringement.
The new law would even enshrine the guilt-by-accusation processes so beloved of the movie industry.
“The Attorney General shall maintain a public listing of domain names that, upon information and reasonable belief, the Department of Justice determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section,” the bill says. Should a registrar or ISP preemptively block a domain on that list, they would be immune from prosecution should it turn out to be wrong.
“But,” you say, “all this is about domain names. Surely the copyright infringers could just use the IP addresses?” True. This is the first flaw. Even if www.crikey.com.au isn’t resolving, I can still get my First Dog fix if I know to use 188.8.131.52 instead.
The second flaw is that it does nothing about file “sharing” through peer-to-peer technologies like BitTorrent — although it would affect websites that published lists of torrent sites containing infringing material.
In other words, the law would only work against those who’ve effectively put up a sign, ‘Here be pirates’. It would simply force the trade underground. Well, more underground.
Do you have a sense of déjà vu right now? You should. Because all of this is exactly the same technical discussion as the one about internet censorship here in Australia. Just search and replace ‘Senator Conroy’ with ‘Senator Hatch’, and ‘child p-rnography’ with ‘pirated movies’. The same techniques to bypass censorship are available.
All that said, the law would start removing the most highly-visible movie download sites from the internet. Its provisions covering orders to financial transaction providers would cut off the infringers’ money supply. The most egregious copyright infringers would be hit hard.
It’d be a great moral victory for the copyright industries — which could then claim that the law still didn’t allow them to attack the underground trade. They’d need better laws. Better technology. Perhaps some sort of device inside ISPs that could block by IP address or even monitor for peer-to-peer trafficking.
Something, in other words, exactly like the technology that would be installed to uncover child abuse material. Mission creep, anyone?