Which One is More Dangerous: Knock-Off Handbags or Suppression of Free Speech?

At the end of November, after 90 days of investigation, the Department of Homeland Security (“DHS”) shut down 82 websites for allegedly violating intellectual property rights.  DHS selected the sites, at least in part, based on rights holders’ complaints that the sites were stealing their intellectual property.  (CNN)  Despite the investigation and tips, the website owners did not receive any notice that their sites would become inoperable.  (To try to visit one of these sites now, click here.)  Democrat Senator Patrick Leahy from Vermont called the seizure of these websites an “innovative use of the tools currently available to law enforcement,” and likened it to the tactics that could become law under the Combating Online Infringement and Counterfeits Act (“COICA” or “the Act”).

Senator Leahy introduced COICA to the Senate Committee on the Judiciary in September 2010.  The Act is still making its way through Congress, but it won unanimous approval from the Judiciary Committee on November 18, and enjoys broad bipartisan support.  The purpose of the Act is to fight websites that violate intellectual property rights by offering visitors items such as pirated music, knock-off purses, and fake prescription drugs.  According to the Committee on the Judiciary, the Act “gives the Department of Justice an expedited process for cracking down on rogue Internet sites by targeting the domain names associated with those sites.”  Under COICA, the Attorney General could obtain expedited court orders and force domain name registrars to shut down websites or direct Internet traffic away from them.

Both COICA and the website shutdowns have caused a great deal of controversy.  Opponents refer to the list of websites that were shut down as an “extrajudicial blacklist,” and argue that terminating domain names is a form of censorship and a violation of free speech.  These critics contend that if COICA becomes law, America will be no different from the repressive regimes it criticizes.  Worse still, the critics predict that an American law that authorizes censorship will encourage other countries to regulate the Internet in similar ways, and we will be on a slippery slope towards destroying the Internet as an unprecedented medium for worldwide connectivity and unrestricted expression.  The critics include nearly 50 law professors who signed a letter in opposition to COICA, which warns that the bill “will have dangerous consequences for free expression online…” if it is enacted.

Advocates of COICA warn that a world without swift enforcement action is dangerous too.  Although a fake Rolex might seem like more of a social liability than a threat to safety, proponents of COICA are quick to point out that some counterfeit websites offer fake prescription drugs, which can be very harmful.  Attorney General Eric Holder defended DHS’s seizure of the websites, saying, “With today’s seizures, we are disrupting the sale of thousands of counterfeit items.  We are cutting off funds to those looking to profit from the sale of illegal goods and exploit the ingenuity of others.”  The entertainment industry applauded the website seizures, calling it a step towards ending widespread theft that poses a threat to entertainers’ livelihoods as well as the U.S. economy.

Both sides of the debate are trying to scare people into joining “their side,” but as is often the case, neither one is entirely correct.  The website seizures and COICA probably do not mark the end of free speech on the Internet or the beginning of a worldwide domino effect in government restriction of Internet access.  Likewise, most counterfeit websites do not present a danger to consumers or seriously threaten the U.S. economy.  However, scare tactics aside, these websites present a real problem that merits a viable solution.  Holders of intellectual property rights deserve to have their rights enforced – just not at the expense of others’ right to free speech.  Website seizures and COICA do not seem like the right solutions to the problem because such tactics have no place in the American legal system and will likely (hopefully) fail judicial review.  Much to the chagrin of the entertainment lobby, the ultimate solution to counterfeit websites should be prosecution through traditional channels of legal enforcement – which may be slow, but will assure that website owners receive notice and an opportunity to be heard before their public forums vanish from the World Wide Web.  DOJ needs to pursue these cases vigorously (but legally) to assure that holders of intellectual property rights are vindicated.

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* Lauren M. Tozzi is a third-year law student at Wake Forest University School of Law.  She holds a Bachelor of Arts in International Relations and Spanish, as well as a minor in Bioethics, from the University of Virginia.  Her work experience includes interning at Qorvis Communications (a D.C. public relations firm), serving as a legal assistant at Kirkland & Ellis, LLP, externing for the Honorable Richard A. Paez in the Ninth Circuit Court of Appeals, and serving as the Martin Luther King intern for Legal Aid of North Carolina.  Upon graduation in May 2011, Ms. Tozzi hopes to practice law in the Washington, D.C. area.