A bill currently making its way through Congress could reshape the way that the United States polices the Internet – a move that opponents call censorship and supporters claim is a reasonable means of enforcing copyright and trademark laws.

The Combating Online Infringement and Counterfeits Act ("COICA") would allow the U.S. attorney general to seek injunctive relief against Internet sites that are dedicated to activities that infringe trademarks and copyrights held by U.S. owners. The proposed law allows the U.S. Attorney General to file in rem petitions in federal district court against domain names held by both foreign and domestic registrants.

COICA offers sweeping injunctive relief against online infringement. If the bill is enacted into law, federal courts would be able to order U.S. domain registrars and registries to shut down domestic domain names that are found to be associated with websites primarily intended to enable access to counterfeit goods or unauthorized copyrighted material. For foreign-registered domains, courts could order U.S. Internet service providers to block user access to the domain names if (1) the domain names are associated with websites primarily designed to allow access to infringing material; (2) the websites are used to access infringing material in the United States; (3) the websites target U.S. residents; and (4) the websites harm American copyright and trademark holders. Courts could also enjoin U.S.-based financial service providers from processing transactions attempted through the infringing website. The proposed law does not require that a hearing be held before a court issues its ruling.

Entire websites could be adversely affected by infringement on one sub-domain. If, for example, a single blogger user posted infringing material on his or her Blogspot.com webpage, all of Blogspot.com could be shut down. Likewise, infringing material found on one page of Germany-based Rapidshare.com could lead to U.S. internet service providers blocking access to all sub-domains hosted at Rapidshare.com.

COICA supporters, including the Motion Picture Association of America, labor unions, and the U.S. Chamber of Commerce, argue that the proposed law represents a careful means of protecting American intellectual property and artists rights. Opponents such as the Electronic Frontier Foundation and the ACLU argue that the bill would lead to widespread government censorship and constitutes a severe restriction on free speech.

COICA was first introduced in September 2010 by a bipartisan group of senators. The U.S. Senate Judiciary Committee passed the bill unanimously on November 18, 2010. The bill is awaiting a vote by the full Senate. Sen. Ron Wyden, D-Ore., who has argued that COICA is an overly-broad response to the legitimate problem of online copyright infringement, has said that he will prevent the bill from being voted on this year.

Arent Fox is closely monitoring the progress of this and other legislation that affects intellectual property owners. To learn more about the Combating Online Infringement and Counterfeits Act and Arent Fox’s work in this area, please contact Anthony V. Lupo or Sarah E. Bruno.