Over at the New York Times, yesterday, Scott Turow and James Shapiro, both of the Authors’ Guild, penned a short piece in defense of stronger copyright law under the title “Would the Bard have Survived the Web?”

“Copyright, . . . linking authors, the printing press (and later technologies) and the market, would prove to be one of history’s great public policy successes. Books would attract investment of authors’ labor and publishers’ capital on a colossal scale, and our libraries and bookstores would fill with works that educated and entertained a thriving nation. Our poets, playwrights, novelists, historians, biographers and musicians were all underwritten by copyright’s markets.. . . Yet today, these markets are unraveling. Piracy is a lucrative, innovative, global enterprise. . . . The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt. They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work. . . .”

To begin with, how odd is it that they’d invoke Shakespeare in this context? “We need stronger copyright or else we won’t get the next Shakespeare” is like arguing “We need the designated hitter, or how will we ever get the next Babe Ruth?” In a copyright-free world — not that I’m advocating such a thing, but hey, you brought it up — we’ll get the next Shakespeare the way we got the last Shakespeare, in a copyright-free world. The first copyright statute, the Statute of Anne, wasn’t passed until 1709, long after Shakespeare was a-moulderin’ in the grave. [That’s what we need a name for – this kind of absurdly misplaced historical argument]

I won’t go on about the larger, more substantive issues they raise, only because I’ve written about it a zillion times in the past. As Barack Obama reportedly said, at the very end of the last conversation he had with Hosni Mubarak before the latter resigned: ‘”I respect my elders. And you have been in politics for a very long time, Mr. President. But there are moments in history when just cause things were the same way in the past doesn’t mean they will be that way in the future.”

But one point they make deserves a more extended reply. Turow and Shapiro voice their support for the bill that was recently introduced in the Senate – the “Combatting Online Infringement and Counterfeits Act” — which would, in their words “target Web sites dedicated to stealing American intellectual property.” COICA, as the bill is known, is a monstrosity, another example of the copyright industries’ attempts to bend the Internet to their private gain. I blogged about it here, and authored a “Law Professors’ Letter in Opposition” posted here – and penned this op-ed piece this past weekend (which the Times chose not to publish):

How Not to Combat Online Infringement

David G. Post



On February 16, the Senate Judiciary Committee will hold hearings on S.3804, the “Combating Online Infringement and Counterfeits Act” (COICA). The bill authorizes the federal courts to issue injunctions against Internet sites that are “dedicated to infringing activities” – i.e., sites “primarily designed,” or with “no demonstrable commercially significant purpose or use other than,” to offer goods or services in violation of the federal copyright or trademark laws, based upon nothing more than an application by the Attorney General and an assertion that the sites in question are operating unlawfully. The injunctions would not actually be directed at the websites themselves (many of which may be located overseas beyond the jurisdiction of US courts), however, but at their domain names; they would require removal of a site’s domain name from the Internet’s central domain name registry databases, and from the “routing tables” used by Internet Service Providers to process Internet messages and route them to their appropriate destination.

If enacted into law, COICA would fundamentally alter U.S. policy towards Internet speech, and not for the better. Along with 50 other law professors, I signed a letter (available at http://tinyurl.com/COICALetter) urging the Senate to reject the bill, because of its dangerous consequences for free expression online, for the integrity of the Internet’s domain name system, and for the United States’ ability to support Internet freedom abroad.

To begin with, COICA authorizes the suppression of Internet speech without any meaningful opportunity for any party to contest the allegations of unlawful content. By styling these as actions to “seize” domain names (as opposed to actions against the individual(s) performing the allegedly illegal acts), the bill avoids the inconvenience of providing the affected party an opportunity to defend his actions or to receive a final judicial determination, after a full adversary proceeding, that the website in question contains infringing material. Relying solely on prosecutorial allegations of a violation of US law, Internet websites around the world would go “dark” – their content unavailable to Internet users anywhere because their domain names will no longer “resolve” properly in the central databases.

Not only does this violate the offending parties’ rights to fundamental due process and free speech – adequate notice and an opportunity to be heard before a neutral judge in an adversary proceeding before content is removed from circulation – it will inevitably suppress large amounts of entirely lawful speech, “burning down the house to roast the pig,” as the Supreme Court once put it. Recent “seizures” of domain names hosting allegedly infringing content by agents of the Department of Homeland Security, operating under the civil and criminal forfeiture provisions of federal law, illustrate the difficulties. Among the websites whose domain name was “seized” in a recent sweep was Rojadirecta.org, a Spanish site offering links to videos of sporting events available on the Internet; unbeknownst (presumably) to the federal agents or the judge issuing the seizure order, court proceedings over the course of several years in Spain had found that Rojadirecta.org was not infringing anyone’s copyright through its listings of available content.

By enlisting private ISPs to block Internet sites solely on the basis of their content, COICA would also represent a dramatic retreat from the US’s long-standing policy of allowing ISPs to focus on empowering communications by and among users, free from the need to monitor, supervise, or play any gatekeeping or policing role with respect to those communications. It is a policy that has not only helped make the United States the world leader in a wide range of Internet-related industries, but it has also enabled the Internet’s uniquely decentralized structure to serve as a global platform for innovation, speech, collaboration, civic engagement, and economic growth.

And perhaps most troubling of all, COICA would compromise the United States’ ability to continue to serve as a bulwark against censorship and other threats to freedom of expression, freedom of thought, and the free exchange of information and ideas on the Internet. At a time when dozens of foreign governments have dramatically stepped up their efforts to censor Internet communications in order to suppress legitimate dissent, to marginalize religious minorities, and to prevent citizens from obtaining information about the world outside their borders – efforts which, in light of the recent events in Egypt and Tunisia, are likely to intensify – the United States has always been a voice, and often the only voice, opposing these efforts. Our ability to defend the principle of the single global Internet – the Internet where all of humanity has equal access to knowledge and ideas, the Internet that looks the same to, and allows free and unfettered communication between, users located in Shanghai and Seattle and Santiago, free of locally-imposed censorship regimes – will be deeply compromised by enactment of S. 3804, which would enshrine in U.S. law for the first time the contrary principle: that all countries have a right to insist on the removal of content, wherever located, from the global Internet in service of the exigencies of local law. Nothing limits the application of this principle to copyright or trademark infringement, and nothing limits the application of this principle to actions by the United States; when all countries exercise this prerogative in support of their local legal regimes, as they surely will, we will have lost – or, more properly speaking, we will have destroyed – the single global inter-connected communications platform that we have built over the past several decades and that holds out so much promise for the improvement of human society across the globe.