In an open letter to President Barack Obama, more than 75 prominent law professors criticize the content and secret manner of negotiation of the Anti-Counterfeiting Trade Agreement (ACTA) and demand a number of changes in the legislation. They also insist that Congress must be consulted about ACTA so open, public debate on the issue can be conducted. The letter can be found here and the Ars Technica news coverage of ACTA and the letter can be found here. Consider their points and voice your views to Washington!
Posted by: Rachel Wolf
In 1971 a great achievement was made in the pursuit of free press: The Pentagon Papers case was decided in a per curium (anonymous) decision denying an injunction against both the New York Times and the Washington Post for publishing leaked papers regarding the United States policy during the Vietnam War. The Supreme Court, in its short, 3 paragraph majority opinion, declared that a prior restraint on speech comes before the court with a presumption of invalidity, requiring the government to prove a substantial reason to issue an injunction preventing publication. The Court agreed with the lower court, without elaboration, that the government had not met its burden.
The controversy began when leaked papers regarding the United States’ Vietnam policy during the Johnson and Kennedy administration were first published in the New York Times. The plan was for the times to publish the documents, one chunk at a time. While originally Nixon did not desire to take any action, Kissinger ultimately persuaded him that allowing the publication set a bad precedent for future leaked secrets. So, the administration sought an injunction against the paper based on the fact that the paper was publishing “national security secrets,” and was successful. The Times appealed the decision, which rose quickly through the federal court system to the Supreme Court as New York Times Co. v. United States, 403 U.S. 713 (1971).
The Washington Post, meanwhile, took matters into their own hands, and began publishing the documents themselves. This time the government also sought an injunction, but was unsuccessful. The government’s appeal resulted ultimately in a combining of the cases against both the Washington Post and the New York Times, forever known as the Pentagon Papers case. The time between the Supreme Court decision reversing the original injunction and sustaining the Post’s challenge was approximately two weeks.
Fast forward almost 40 years, and the internet has opened up a whole new world of available information. Some of the most controversial of that information in 2010 are the Wikileaks’ documents made available regarding the Afghanistan and Iraq wars. The most notable difference between the Vietnam documents leak and the Iraq war documents leak is availability of government action. Assuming for the sake of argument that the organization was based in the United States, the government could not (and did not) seek an injunction that would likely be successful after New York Times.
However, even if the government could have sought an injunction successfully, it would not likely matter in the internet age. The speed and effectiveness of the internet and bloggers in particular means that when information becomes available to one, it becomes available to all. Wikileaks may be an exception to the rule, in that they have made announcements a few weeks prior to releasing their documents on their site. This, they claim, is to ensure that information that would put individuals at risk is blocked out. Depending on the sensitivity of the information, or the integrity of the blogger, information has the potential to become available before anyone is prepared for it. Such is the beauty of the internet age.
So, what does this mean for bloggers? Certainly, the press is protected from prior restraint (as was the issue in the Pentagon Papers case). Prior restraint was abhorred by the Framers when writing the First Amendment, which is why prior restraint is still abhorred by the Court. This means that any injunction to prevent the publishing of content not only comes to the Court with a presumption of invalidity, but anyone seeking that injunction will not likely succeed. This means that bloggers can feel free to publish their content without prior restraint. It does not mean, however, that bloggers may publish anything without retaliation.
The Pentagon Papers case did not establish that journalists would be free from prosecution under anti treason laws like the Espionage Act. In fact, the journalists involved in the Pentagon Papers case were prosecuted under the Espionage Act, but were subsequently freed only due to a mistrial.
Bloggers must remember that just like less “controversial” journalists, they are subject to prosecution for violating these types of laws. Though the government today seems to be less reactionary to leaked documents incidents than it was in the 1970s (for example, the Wikileaks incidents in the summer and fall of 2010 has come with only a handful of comments from the administration about its relative unimportance) there is still a potential for criminal prosecution.
Something that is much more likely than opening oneself up to criminal liability under the Espionage Act is the possibility of a suit for libel. While a public figure must show actual malice to prove a claim of libel thanks to the case New York Times Co. v. Sullivan 376 U.S. 254 (1964), a claim by a non-public figure is much easier to prove in court. This means that bloggers must be careful to ensure that if they are blogging about an individual or individuals that their facts are straight to ensure a minimized risk of liability. Or, they may choose to blog anonymously, reducing the risk of liability due to the inability of the claimant to find the responsible person.
This is still a risky move, though anonymous speech is recognized by the Supreme Court as protected. Talley v. California, 415 U.S. 926 (1974). Different circuits have interpreted that level of protection differently in an effort to balance the speaker’s interests and the interests of the libel victim. Some courts, like the Delaware Supreme Court in 2005 have established the highest standard in order to force the revelation of an anonymous blogger in a lawsuit. Cahill v. Doe, 884 A.2d 451 (2005). Other courts, however, have set a much lower standard of proof in order to force the revelation of a blogger identity. In re Baxter, WL 34806203 (2001). This means that a blogger should still be careful to ensure accuracy in his blog, even when publishing anonymously. Because the Supreme Court has yet to decide how much protection an anonymous blogger is afforded by the First Amendment in the context of a libel suit, bloggers still run the risk of liability in certain states and districts.
The Pentagon Papers case was a great victory for free press and free speech in 1971. The formal establishment that the government could not restrain speech prior to publication without an extremely compelling interest opened the doors for journalists (and later bloggers) to expose government corruption. Bloggers must still remember that while they cannot be restrained from speaking, they may still be held responsible for what they publish under United States criminal laws or in the context of a civil libel suit.
A total of 96 prominent internet engineers have signed onto an Electronic Freedom Foundation (EFF) open letter to Congress opposing enactment of Combating Online Infringements and Counterfeiting Act (COICA). For an explanation of their opposition, see the open letter on the EFF site here.
The Internet has created a platform for individuals to exercise their right of free speech, and over the years, Internet users have responded in droves, uploading and downloading user-generated (and sometimes not user-generated) content that is shared and spread like wildfires. This community of free distribution of information and content has created the market for multi-billion dollar distractions such as Facebook and YouTube, platforms that provide the framework, while the users provide the content.
However, this has created nightmares for copyright holders, such as the Motion Pictures Association of America (MPAA) and the Recording Industry Association of America (RIAA), two of the most influential and pervasive copyright holders in the world, who view this free-sharing of content, not as a rightful use in a new community of interconnectivity, but as fast spreading virus of illegal activity that threatens to destroy the businesses of movies and music. The problem is that the Internet, which began and stayed largely unregulated, has allowed the public to do things they never could have done on a mass scale before. Now a user uploaded video has the potential of reaching millions if not billions of people worldwide, whereas this was impossible prior to the Internet. Such was the point of the Internet, but few were prepared for the consequences of giving the public a free and open platform to share content, the result of which has enabled users to do what many could have expected: share content with each other they normally would have had to pay for. Why pay for it when you can download it from a friend for free? Even worse for the MPAA and the RIAA, you don’t even have to know the person you’re downloading it from!
The MPAA and RIAA obviously would like to prevent the illegal downloading of their content, which they see as a major reason for a downturn in profits, but how does one go about stopping a user from uploading or downloading copyrighted content, in a community that promotes the free sharing of ideas? Many tactics have been employed, mostly unsuccessful attempts to frighten Americans into complying with the law, such as the RIAA’s multiple lawsuits against individual downloaders widely reported in the media. However, the amount of downloading of copyrighted works has not decreased, and may have actually increased as new technology, such as the iPod, have increased the value of digital file copies of movies, songs and books. Thus, the MPAA and the RIAA, are attempting to stop the problem at the chokepoint, the Internet Service Providers (ISPs).
Internet Service Providers, such as Comcast, face great costs and difficulties in maintaining the framework that allows for massive Internet traffic. Bandwidth is limited, and they have a great incentive to reduce it. The RIAA and the MPAA have been working on ISPs over the years, to persuade them to choke off the bandwidth to users that have a high volume of traffic in files, because peer-to-peer and bit torrent downloading and uploading use a lot of bandwidth. Anyone that is using a lot of bandwidth must be downloading illegally… right? They have at least convinced some ISPs, who probably do not care either way, because they can justify cutting off the bandwidth to users by explaining their great difficulty in supporting the demand. Thus, practices that use a lot of bandwidth will result in users being cutoff for a period of time as a penalty for the burden they have placed on their ISPs.
But that’s not enough in the eyes of the RIAA, which is pushing for the United States to adopt a more stringent standard, as adopted in France: a three strikes policy that will effectively leave more active Internet downloaders without Internet service. Content providers notify ISPs of suspicious activity by an IP address and the ISP sends a warning to the user. After three warnings, the user is banned from the Internet Service. Whether this action results in a blacklist of all other ISPs is unclear, but one can infer a high likelihood of denial by other ISPs of a frequent violator. Criminal penalties are also in the works for frequent illegal downloaders. The question remains, how do they know which downloads are infringing and which are not? The RIAA wants spyware software placed on everyone’s computer in order to answer this question, but the truth is, they do not know for sure what is being downloaded. However, ISPs do not need proof of copyright infringement to justify cutting bandwidth of active users, because the cut is nondiscriminatory bandwidth capping. This means that legal users, such as an indie film producer who offers his own content on peer-to-peer networks as part of his business or downloads his friends’ content, will be precluded from doing so if his usage exceeds the cap. In the future, he may even be cut off from Internet access altogether.
Don’t we retain some right of access to the Internet, an invaluable tool that is supplanting most forms of communication? Many can argue that today those with Internet access have a great competitive advantage over those without. Congress has refused to address this problem (likely because it could create a political uproar), but President Obama is currently working on an international treaty that may include this new three strikes requirement for ISPs, effectively taking Congressional action out of the picture.
What does all this mean for we American Internet users? It means that the days of unrestricted access and use of the Internet may be coming to an end, and the culture of free sharing of content that has been prevalent since the genesis of the Internet may be a faint memory we will share with our grandchildren. They’ll stare in disbelief as we explain how music and films were available for free from others and they’ll ponder, “What is a CD?” Or maybe, Americans will stand up for their freedom and demand that their toy the Internet remain unrestricted. Maybe the film and music industries will find alternate models of profit making. But likely, there will come a time when the fun is over, and many Americans once again will be forced to purchase the content they so enjoy.
A bill recently introduced by Congress called S. 3804, the Combating Online Infringement and Counterfeits Act (COICA) by Sen. Patrick Leahy (D-VT) and Sen. Orrin Hatch (R-UT) attempts to combat copyright infringement on the Internet by creating a blacklist of Internet domain names which are controlled though the U.S ICANN Dynamic Name Service (DNS). It creates two distinct blacklists that would require Internet Service Providers (ISPs) to block blacklisted domain names otherwise known as website addresses that are used to locate their servers on the Internet. The first blacklist would contain domain name registrars that have been served any court order from the Attorney General in regards to infringement activity. The second blacklist would “maintain a public listing of domain names that, upon information and reasonable belief” that the Department of Justice determined without judicial review were “Dedicated to Infringing Activities”. This distinction would apply to any website where counterfeit goods or copyrighted material are considered “central to the activity of the Internet site”. The consequences of this bill would essentially dismantle the infrastructure of the Internet and cause irreparable harm to the continued existence of technological free speech and must not be allowed to become law.
Although the bill only dictates that the first blacklist is subject to censorship, it provides incentive for service providers to also block websites on the second list pro-actively in order to guarantee immunity. This distinction of whether or not a website could be considered “dedicated to infringing activities” and then subsequently blocked raises significant legal, political and technical issues. First and foremost its enactment would pose a serious threat to Free Expression thereby imposing “prior restraints” on speech. Restricting speech in this manner has been expressed by the courts only to be used in extreme cases and is considered “the most serious and the least tolerable infringement on First Amendment rights.” Several technology rights organizations such as the Center for Democracy and Technology(CDT) and Electronic Frontier Foundation(EFF) have spoken out against the censorship of free speech and the Internet in “An Open Letter From Internet Engineers to the Senate Judiciary Committee” that states; “If enacted, this legislation will risk fragmenting the Internet’s global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure.” These advocacy groups recognize the fundamental dangers of censoring entire perceived copyright infringing domains that would inevitably lead to blacklisting legal, law abiding content and sub-domain websites.
If these blacklists are implemented they will very quickly begin to reshape the Internet. As more and more websites are blocked, third party services will emerge to meet the demand to circumvent these blacklisted DNS servers. These circumventing services would expose the inherent weakness of the COICA blacklists by enabling users to simply install an Internet web-browser plugin that would allow them to choose an alternative DNS server with the click of the button. Although seemingly insignificant from the end users’ perspective, these plugins essentially bypass all levels of trust and security we have come to expect with DNS. This ‘re-direction’ away from internationally maintained and monitored DNS servers would encourage the malicious use of these third party services or plugins to expose Internet users to ‘untrusted’ DNS servers that could easily hijack their passwords and confidential information. This new ‘fragmented’ Internet would be a step backward in technological progress and innovation that would essentially be equivalently analogous to communist China’s Internet firewall. China’s firewall blocks keywords and websites that the Government deems inappropriate. If this sounds familiar it is because China’s firewall is essentially a blacklist of keywords and domain names that ‘facilitate’ inappropriate infringement, extremely similar to what the COICA bill recommends.
From a legal perspective the broad use of the term “facilitating” in the bill, specifically referring to copyright infringement could undermine the U.S secondary liability law as stated in Sony Corp. of America v. Universal City Studios, Inc. that it “does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.” By this definition the COICA bill would raise concerns about constructive knowledge for contributory infringement purposes, as set forth in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., “by intentionally inducing or encouraging direct infringement.” if service providers are aware of blacklisted websites but do not discontinue providing service to those websites. These inconsistencies could threaten existing copyright exceptions, limitations and fair use defenses as wells as the DMCA Safe Harbor provisions.
Under this COICA bill for example, if a website were perceived to be “dedicated to infringing activities”, yet was operating under fair use and subsequently added to the blacklist and censored, service providers could be held liable for Misrepresentation under 17 U.S.C §512(f)(2). Pursuant to section §512(f)(2) “any material or activity that was removed or disabled by mistake or misidentification” could indicate that the infringers would “… be liable for any damages, including costs and attorneys’ fees…” The Safe Harbor provisions were enacted to protect against this type of abuse on free speech and support the advocacy work of the lawyers who fight these battles by enabling them to recoup their legal fees. Although the bill outlines a lengthy process for blacklisted domains to get off the “blacklist” and receive a “judicial review”, it is an opt-out process that threatens the very existence of the Internet. It creates an ambiguous situation where under the proposed COICA legislation domains placed on these blacklists may never find their way off. These blacklisted domains would need significant financial resources in order to peruse a misrepresentation counter-claim or successfully defend the legality of their website against the subjective evidence of the Attorney General, further complicating the issue.
The proposed COICA bill is attempting to leapfrog the current DMCA copyright infringement takedown notices by going above and beyond the removal of infringing content to include not just the content itself, but the entire domain. In the same way that the Safe Harbor provisions of the DMCA protect ISPs from contributory liability, these blacklists specify the “constructive knowledge” that service providers must follow in order to maintain immunity. This situation effectively creates a piracy “witch hunt”, that enables the Government to circumvent the very copyright laws meant to protect publishers and consumers and ultimately remove the judicial system entirely from excising due process in protecting Free Expression on the Internet. As of the writing of this article the Senate Judiciary Committee will not be considering the COICA bill until after the midterm elections this November 2010. This temporary victory should hopefully serve as a wake up call to Internet users worldwide. Now is the time to spread awareness about this critically important issue and exercise your freedom of speech on the Internet by getting involved with organizations such as the CDT and EFF in order to educate our elected representatives; “Tell Your Senator: No Website Blacklists, No Internet Censorship!”
1.EFF, “An Open Letter From Internet Engineers to the Senate Judiciary Committee | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,
2.“Bill Summary & Status – 111th Congress (2009 – 2010) – S.3804 – THOMAS (Library of Congress),” n.d.,
3.Center for Democracy an Technology, “CDT Memo on the bill,” n.d.,
4.“Censorship of the Internet Takes Center Stage in “Online Infringement” Bill | Electronic Frontier Foundation,” n.d.,
5.Demand Progress, “COICA Fact Sheet | Stop the Internet Blacklist! | Demand Progress,” Demand Progress, n.d.,
6.David Segal, “David Segal: Stop the Internet Blacklist,” The Huffington Post, September 27, 2010,
7.Mike Masnick, “Even Without COICA, White House Asking Registrars To Voluntarily Censor ‘Infringing’ Sites | Techdirt,” Techdirt, September 30, 2010,
8.First draft text of the COICA bill
9.“Letter of Concern to the Senate Judiciary Chair and Ranking Member,” September 27, 2010,
10.Jaikumar Vijayan, “Online IP Protection Bill Sparks Outrage – PCWorld,” PCWorld, n.d.,
11.Mike Masnick, “RIAA Claims That If COICA Isn’t Passed, Americans Are ‘Put At Risk’ | Techdirt,” Techdirt, September 29, 2010,
13.EFF, “Sites COICA may take offline, and why | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,
14.Demand Progress, “Stop the Internet Blacklist! | Demand Progress,” Demand Progress, n.d.,
15.EFF, “The COICA Internet Censorship and Copyright Bill | Electronic Frontier Foundation,” Electonic Frontier Foundation, n.d.,
16.“U.S. Copyright Office – Copyright Law of the United States,” n.d.,
17.Tim Jones, “Victory: Internet Censorship Bill is Delayed, For Now | Electronic Frontier Foundation,” Electonic Frontier Foundation, September 30, 2010,
18.Mike Masnick, “What Else Might COICA Be Used To Censor | Techdirt,” Techdirt, September 29, 2010,
19.Julian Sanchez, “Wiretapping the Internet | The American Prospect,” The American Prospect, October 4, 2010,
20.Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984).
21.Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).
22.“Great Firewall of China | Home,” n.d.,