And boom goes the dynamite. Last month I wrote about the looming disaster that is COICA – the Combating Online Infringement and Counterfeits Act. Thanks to a brewing fight between a United States government agency and web advocate and Firefox distributor Mozilla, we're getting a preview of the conflicts that COICA would cause if enacted.
As a quick refresher: COICA would allow the government to block sites at the domain name level. Immigration and Customs Enforcement (ICE), an arm of the Department of Homeland Security (DHS), had already made a dry run of sorts, pulling down several sites earlier in the year, angering our allies who had declared the sites non-infringing. So just think of COICA as an invitation for the US to declare war on the infringing internet, casualties be damned.
I argued this would be a terrible idea for all sorts of due process reasons and wouldn’t work due to easy technological adjustments. Now we see what will be the likely US response to those technological adjustments: arbitrary demands! Let’s see how this brilliant strategy plays out.
Some folks who didn’t much like the ICE domain seizures decided to author a simple Firefox plug-in, MAFIAAFire, that rerouted users to the alternate domains of seized sites. This basically undid all of ICE’s sloppy pull-down work, allowing users to easily access the blacklisted sites.
In response, DHS demanded that Mozilla remove the add-on, on the grounds that the add-on “circumvented a [previous] seizure order” against the blacklisted sites. Mozilla’s response was to ask some basic law-and-order (dun-dun) type questions:
To help us evaluate the Department of Homeland Security's request to take-down/remove the MAFIAAfire.com add-on from Mozilla's websites, can you please provide the following additional information:
1. Have any courts determined that MAFIAAfire.com is unlawful or illegal in any way? If so, on what basis? (Please provide any relevant rulings)
2. Have any courts determined that the seized domains related to MAFIAAfire.com are unlawful, illegal or liable for infringement in any way? (please provide relevant rulings)
3. Is Mozilla legally obligated to disable the add-on or is this request based on other reasons? If other reasons, can you please specify.
4. Has DHS, or any copyright owners involved in this matter, taken any legal action against MAFIAAfire.com or the seized domains, including DMCA requests?
5. What protections are in place for MAFIAAfire.com or the seized domain owners if eventually a court decides they were not unlawful?
6. Can you please provide copies of any briefs that accompanied the affidavit considered by the court that issued the relevant seizure orders?
7. Can you please provide a copy of the relevant seizure order upon which your request to Mozilla to take down MAFIAAfire.com is based?
8. Please identify exactly what the infringements by the owners of the domains consisted of, with reference to the substantive standards of Section 106 and to any case law establishing that the actions of the seized domain owners constituted civil or criminal copyright infringement.
9. Did any copyright owners furnish affidavits in connection with the domain seizures? Had any copyright owners served DMCA takedown notices on the seized domains or MAFIAAfire.com? (if so please provide us with a copy)
10. Has the Government furnished the domain owners with formal notice of the seizures, triggering the time period for a response by the owners? If so, when, and have there been any responses yet by owners?
11. Has the Government communicated its concerns directly with MAFIAAfire.com? If so, what response, if any, did MAFIAAfire.com make?
Mozilla’s reluctance to start arbitrarily pulling things down should make us stop and reflect. We should not pass COICA. We should not authorize more domain name seizures without judicial process. We should not risk betraying principles of concordance and comity by pulling down sites declared legit by foreign courts. Let’s stop this nonsense before someone loses an eye.
Andrew Moshirnia is a third year student at Harvard Law School.
(Image taken from http://barbtarr.blogspot.com/2010/03/pink-explosion.html, used with permission of artist Babs Tarr)