Nathan Fan is a JD Candidate at Osgoode Hall Law School

“Few things are more important to the future of the American economy and job creation than protecting our intellectual property”, said Senator Patrick J. Leahy while introducing the Combating Online Infringement and Counterfeits Act (COICA) to the U.S. Senate on September 20, 2010. Aimed at curtailing online piracy and websites with counterfeit offerings, COICA would be the Department of Justice’s newest “crack down” tool against websites dedicated to online infringement. In short, COICA allows the DOJ to obtain court orders to take down target domain names from public access. For domain names registered internationally, COICA would allow the DOJ to order third parties (e.g. ISPs, payment processors, online ad network providers) to block public access.

Critics have raised concerns over the censorship ramifications the COICA bill might bring. The EFF has dubbed COICA as an “internet censorship bill” and as Richard Esguerra explains, COICA’s broad definition of websites “dedicated to infringing activities” alongside the lack of judicial review for DOJ “black listing” decisions could have the potential for “a longstanding and dangerous impact on freedom of speech, current Internet architecture, copyright doctrine, foreign policy, and beyond”. Canadian Professor Michael Geist also warns that since the core of the domain name system resides in the U.S., COICA’s ability to suspend domain names registered in the U.S. could have the effect of blocking or removing sites on a global level.

In support of COICA, the RIAA has spoken in favour of the bill: “Congressional and administration leaders have made it clear that doing nothing is no longer an option. If these groups have a better idea than the meaningful, bipartisan approach [Leahy’s COICA], we welcome their ideas on how to insure that the Internet is a civilized medium instead of a lawless one where foreign sites that put Americans at risk are allowed to flourish.” The RIAA argues that while COICA can be improved to strengthen its effectiveness, it is nevertheless a good starting point for protecting American ingenuity and creativity. Viacom has also stepped forward in COICA’s defense, stating that the film and television industry, arguably one of America’s most vital exports and responsible for millions of U.S. jobs, has suffered the loss of large profits due to global intellectual property theft and that COICA is an important step forward into remedying these losses.

In response to the criticism, COICA has recently undergone amendments, including a decrease in liability for third-party registrars and ISPs and the requirement for the Attorney General to work with law enforcement to create coordinated investigations. However, COICA has been reportedly shelved at least until midterm elections in November have passed.