By: David Pascarella

On September 20, 2010, Senator Patrick Leahy, along with 16 co-sponsors, including Senators Schumer and Gillibrand of New York, introduced S.3804, the “Combating Online Infringement and Counterfeits Act” (COICA).  The bill, which has been referred to the Senate Judiciary Committee, is aimed at addressing online piracy and counterfeiting estimated to result in billions of dollars of intellectual property theft each year.

Under the proposed law, an Internet site “dedicated to infringing activity” where copyrighted material or counterfeit goods are “central to the activity of the Internet site or sites access through a specific domain name” could be blocked.  The proposed law would allow the U.S. Department of Justice to file a civil, in rem action seeking a preliminary court order against an Internet site that it determines is peddling infringing copyrighted material and counterfeit goods.

Internet service providers and domain registrars would, if the law is passed, be required to take expeditious and reasonable steps to prevent access to any domain name served with a court order.  In addition, U.S. based payment processors would be required to take reasonable measures, as expeditiously as practical, to prevent processing online payments on purchases associated with a domain name served with a court order.

Under the originally proposed bill, two lists of domain names would be created, one list with domain names served with a court order, and another list by the U.S Attorney General that upon information and belief, the U.S. Department of Justice determines are dedicated to infringing actives but which an action has not been filed.  Entities such as Internet service providers taking action with respect to listed domain names would receive immunity protections.  Within a week of the originally proposed bill, an amendment to the original bill removed the requirement of the second list in light of public outcry.

Proponents of the bill say that COICA bill will give the U.S. Department of Justice new tools to go after such Internet sites, particularly those based outside the U.S. Others argue that the bill is ambiguous and would result in Internet censorship, and sites like YouTube – which now takes down copyrighted material when they are informed about it – could be subject to a court order under the proposed law.