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Leahy Takes Heat Over Support for Online Anti-Piracy Bill 

Published November 19, 2010 at 11:25 a.m.

U.S. Sen. Patrick Leahy (D-VT) is coming under fire from Internet privacy and free speech groups for legislation he shepherded through the Senate Judiciary Committee that some believe is a ham-handed approach to clamping down on piracy and copyright infringement.

The Combating Online Infringement and Counterfeits Act passed the Senate Judiciary Committee on a 19-0 vote, and has the support of Hollywood movie studios, the music industry, labor groups and the Newspaper Association of America.

'The bill provides law enforcement with the ability to stop websites dedicated to online piracy and the sale of counterfeit goods. The illegal products offered through these websites, which are often foreign-owned and operated, range from new movie and music releases, to pharmaceuticals and consumer products. Intellectual property theft costs the U.S. economy more than $100 billion every year, according to estimates, and result in the loss of thousands of jobs, according to Leahy's office.

The bill would give the U.S. Department of Justice the ability to seek a court order to shut down specific domain names if they can prove to a court that the material being sold or distributed on that site violates US laws protecting copyrights. A "rogue" site, as Leahy calls it, is one whose sole purpose is to distribute contraband or illegal material.

However Internet privacy and free speech groups say the bill has the potential to cede Internet free speech to the government and the industry this bill sets out to protect.

"Given the fundamental due process values of our nation and the potential for other countries to enact similar mechanisms to retaliate against U.S. companies abroad, Congress must carefully consider whether it wishes to authorize Justice Department officials to blacklist websites in a manner subject to little process and limited judicial review," wrote nearly a dozen groups in a joint letter to Leahy earlier this fall. "Without judicial oversight, these blacklists could reach the websites of political candidates and advocacy groups. Numerous political campaigns have received copyright cease-and-desist letters or infringement notices, including candidates very recently in this cycle from both parties."

Another group, the Electronic Frontier Foundation, dubbed the bill Hollywood's blacklist for the digital age.

"This is a censorship bill, with a blacklist and everything. Hollywood's previous adventures with blacklists were a dark period in American history. This time, it's not people suspected of being too communist, it's websites suspected of being too 'piratical,'" wrote EFF's Peter Eckersley in a lengthy legislative analysis of the bill. EFF is a non-profit that works to protect online free speech and commerce.

"Senator Leahy is leading the government into the swamp of trying to decide which websites should be blacklisted and which ones shouldn't, and they're going to discover that the line between copyright infringement and free political speech can be awfully murky," wrote Eckersley.

Leahy disagrees. He says the bill is not about deciding what content is good or bad on the Internet, rather the legislation is designed to give the U.S. Department of Justice the ability to go to court as a way to shut down "rogue" websites that solely sell or distribute pirated material.

"Rogue websites are essentially digital stores selling illegal and sometimes dangerous products. If they existed in the physical world, the store would be shuttered immediately and the proprietors would be arrested," said Leahy in a statement. "We cannot excuse the behavior because it happens online and the owners operate overseas. The Internet needs to be free — not lawless."

The Combating Online Infringement and Counterfeits Act will give the Department of Justice a better process for cracking down on rogue websites, regardless of where overseas the criminals are hiding, Leahy added.

During a live call-in show on Vermont Public Television Thursday night, Leahy said he's not interested in seeing legitimate websites shut down, but rather websites whose sole function is to sell pirated or copyrighted material without proper authority.

He also promised to hold hearings next year to enure the DOJ is not abusing its power under the law.

"What these rogue websites do is theft, pure and simple. Some have argued that the conduct should be excused as free speech because it happens on the Internet. That argument contradicts the basic tenet of copyright law which, as Justice [Sandra Day] O’Connor explained, is the very 'engine of free expression,'" said Leahy. "Ensuring that creators have the exclusive right to be compensated for their work is not only a critical characteristic of our economy, but is endowed as an essential right. Copyright law does not exist in opposition to our guarantee of free speech, it supports it."

Leahy's office said the bill would not affect people who are engaged in legitimate fair use of copyrighted material, nor would the bill be used to shutter popular websites — such as YouTube or eBay — or items posted that are either counterfeit or in voilation of US copyright laws.

US-based laws that can be used to crack down on counterfeiters and pirates already exist. This bill, Leahy's staff asserts, is to give U.S. authorities more tools to crack down on overseas scofflaws who happen to use U.S. infrastructure to operate and reach consumers. In fact, Leahy added language to the bill that gives the court a greater role in this process to ensure that the DOJ isn't going rogue on its own with the new law.

Still, some digital advocates, like the Washington, DC-based Public Knowledge, say they will work to improve the legislation in the next Congress if they can't make further improvements to the bill this session.

“We are disappointed that the Senate Judiciary Committee this morning chose to disregard the concerns of public-interest groups, Internet engineers, Internet companies, human-rights groups and law professors in approving a bill that could do great harm to the public and to the Internet," said Gigi Sohn, president and co-founder of Public Knowledge. “We look forward to working with the committee next year to craft a more narrowly tailored bill that deals with the question of rogue websites."

Being criticized by free speech groups is new for Leahy, who is often seen as a champion of open government and has fought efforts to restrict what the federal government has to release under the Freedom of Information Act (FOIA). In 1996 he was inducted in the FOIA Hall of Fame.

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Shay Totten

Shay Totten

Shay Totten wrote "Fair Game," a weekly political column, from April 2008-December 2011.

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