On September 20th, Senator Patrick Leahy and a group of bipartisan Senators introduced the Combating Online Infringement and Counterfeits Act (COICA). Senate bill S. 3804 is legislation proposed to address the growing problem of online piracy and counterfeiting. The bill combats intellectual property infringements of copyrighted goods, such as pirated movies and music, and trademarked products, such as counterfeit pharmaceuticals and consumer electronics.
The reaction to the legislation has been divided into two main camps.
Proponents of the bill include supporters of intellectual property rights, including the Motion Picture Association of America, U.S. Chamber of Commerce, the International AntiCounterfeiting Coalition, and the International Trademark Association. Opponents of the bill include fair use and privacy groups, such as the Electronic Frontier Foundation, Demand Progress, Center for Democracy & Technology, and Distributed Computing Industry Association.
As I follow the statements of both camps, I believe there is common ground for productive dialogue. While there are honest differences, I would like to highlight three building blocks for mutual discourse.
1. Protection of Consumer Safety
As we are all aware, the Internet is exploited by illegitimate entities looking to sell counterfeit and pirated goods. They setup rogue websites to peddle illegal, substandard, and unauthorized products, and also entice consumers with low prices, easy access, and a show of legitimacy. We have heard enough horror stories of tainted toothpaste, exploding batteries, lethal drugs, etc. to understand the risks to public health and safety. S. 3804 is a response to protect consumer safety, and it behooves us to support its passage.
2. Safeguarding Innovation
The protection of intellectual property is necessary for safeguarding innovation and creativity. We all benefit and derive pleasure from new medicines, latest gadgets, trendy fashions, and hottest music. Counterfeiting and piracy represent the theft of someone else’s innovation and creativity, and costs the U.S. economy over $100 billion annually.
Opponents of the COICA cite YouTube as an innovative media platform that would have been censored under the bill’s current definition. While such concern is valid, should we not protect YouTube as well as every other form of creative new technological development? As much as we are concerned about any one innovation, we should work to protect all forms of copyright and trademark intellectual property.
3. Constructing a Clear Legal Remedy
For all who support the protection of intellectual property rights, we also need to support a framework for legal action against counterfeiters and pirates. The growth of the Internet has outpaced the jurisprudence of Internet law. We can see examples of this from the great interest shown in the recent cases of Tiffany v eBay and Louis Vuitton v Akanoc.
The rogue sites bill is proposed in recognition of the need to fill in the gaps for policing counterfeit and pirate activity on the Internet. The legislation gives the Department of Justice an important tool to take action on infringing sites. Before a suspect website is shutdown, there should be clear evidence of intellectual property infringements and trafficking in counterfeit and pirated goods. The need to provide clarity on the legal remedies that can be employed must be balanced with concerns for appropriate due process.
The introduction of S. 3804 is a strong signal of the importance of protecting intellectual property rights. The devil is in the details, and we need open dialogue to work out specific concerns raised from different perspectives. However, if we agree on the underlying motivation for the legislation – to protect consumer safety, to safeguard innovation, to construct a clear legal remedy – we can stand on common ground. The threat of counterfeiting and piracy is too great to be sidetracked by partisan interests.
Learn more about OpSec’s Intellectual Property Protection Solutions.