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Senator Ron Wyden, the Oregon Democrat responsible for putting a hold on the controversial Combating Online Infringement & Counterfeits Act (COICA), has been among the bill’s most vocal critics.Last month he pointed out the curious manner in which the content industry has managed to “piggyback” on the concerns of industries that trade in physical or “real merchandise.” He called the COICA the “wrong medicine” for battling online copyright infringement, and argued that if not done properly the “collateral damage would be American innovation, American jobs, and a secure Internet.”The Senate Judiciary Committee recently held a hearing entitled “Targeting Websites Dedicated To Stealing American Intellectual Property” in which a number of Senators expressed their support for the COICA, but Sen Wyden made clear his opposition.He testified:Make no mistake, I share the committee’s goal of fighting counterfeiting and protecting our creative industries and the good paying jobs they support. The Internet has unquestionably created new opportunities to traffic in counterfeit and illegal goods. The fact that the law has not always kept pace with technology may make it easier for bad actors to exploit new opportunities. Congress is right to want to go after those who are “stealing American intellectual property.” However, in writing laws to target the bad actors, Congress cannot afford to forget that the primary uses of the Internet are activities protected by the First Amendment, not civil or criminal violations.It’s a sentiment previously echoed by the Center for Democracy and Technology which says that the First Amendment allows pro-active blocking (i.e. site seizure) only in the “rarest of occasions,” and that this is especially true when the seizures also seize lawful content in the process.“Sites that discuss and advocate for P2P technology or for piracy, like pirate-party.us, p2pnet, InfoAnarchy, Slyck and ZeroPaid: while these sites contain a great deal of news and political speech, they also regularly link to tools and information intended for file sharing, and the DOJ could well decide that infringement is “central” to their purpose and take the entire sites offline,” observed the Electronic Frontier Foundation. “That outcome would be fundamentally contradictory to freedom of speech.”Sen Wyden says that it’s important that the Internet have “reasonable laws” and that we do need to pursue “bad actors,” but questions the need for sacrificing the freedoms of billions of Internet users in the “interest of easing that pursuit.” “The decisions we make to police the Internet today will also govern how this relatively new medium will continue to develop and shape our world,” he added. “I objected to last year’s Combating Online Infringement of Copyrights Act not because it might reduce the Internet’s ability to facilitate infringement, but because I believe it went about it in a way that would also reduce the Internet’s ability to promote democracy, commerce and free speech. We can strike a better balance.”For this he stresses the importance of making the following six considerations:1. Don’t be hasty.2. Avoid collateral damage.3. Preserve Fair Use and secondary liability protections.4. Be mindful of how remedies can threaten and shape the integrity or architecture of the Internet.5. Avoid taking actions that will empower foreign regimes to censor the Internet.6. Recognize the difference between copyright infringement and counterfeits.Moreover, he adds, the govt shouldn’t find itself in the position of protecting outdated business models.“This is also not the first time that, the content industry has raised concerns about a new technology’s threat to their business models,” said Sen Wyden. “The introduction of recorded music, the photocopier, the VCR, the audio cassette all brought predictions of doom and gloom. Not too long ago, Senator Pete Wilson called his colleagues to join him in fighting the use of Digital Audio Tapes, which he said were ‘sapping the very life out of the American music industry’.”Earlier this month Sen Wyden wrote a letter to Attorney General Eric Holder and John Morton, Director of the Immigrations and Customs Enforcement division, expressing his dismay over the ongoing “Operation In our Sites” domain seizure campaign. That effort is considered a harbinger of what to expect with the COICA.
