Combating Online Infringement and Counterfeits Act

The text of the bill defined an infringing website as one that is:

(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer:

(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or

(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled 'An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes', approved July 5, 1946 (commonly referred to as the 'Trademark Act of 1946' or the 'Lanham Act'; 15 U.S.C. § 1116(d)); and

(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.[4]

The bill, if passed, would have allowed the Attorney General to bring an in rem action against the infringing domain name in United States District Court, and seek an order requesting injunctive relief. If granted, such an order would compel the register of the domain name in question to take the following actions:

Upon receipt of such order, the domain name registrar or domain name registry shall suspend operation of, and may lock, the domain name.[5]

If the infringing website had not been located in the United States, the bill empowered the Attorney General to bring a similar action in the United States District Court for the District of Columbia. Should an order for injunctive relief been granted, the Attorney General would then have been empowered to serve said order upon, and compel to perform the actions listed:[6]

(i) a service provider, as that term is defined in section 512(k)(1) of title 17, United States Code, or other operator of a domain name system server shall take reasonable steps that will prevent a domain name from resolving to that domain name's Internet protocol address;

(ii) a financial transaction provider, as that term is defined in section 5362(4) of title 31, United States Code, shall take reasonable measures, as expeditiously as practical, to prevent--

(I) its service from processing transactions for customers located within the United States based on purchases associated with the domain name; and

(II) its trademarks from being authorized for use on Internet sites associated with such domain name; and

(iii) a service that serves contextual or display advertisements to Internet sites shall take reasonable measures, as expeditiously as practical, to prevent its network from serving advertisements to an Internet site accessed through such domain name.

Should a party fail to comply with an order served upon it by the Attorney General, the Attorney General would have been able to bring an in personam action against the party in question.[7]

The bill also called for the creation, by the Justice Department, of two publicly available lists of domain names. The first list would have been composed of domain names against which the Attorney General has obtained injunctions.[8] Domestic domains would be required to be locked by their registrars, and service providers, financial institutions, and advertisers would be required to block service to any nondomestic domains on this list. The second list would be a list of domains alleged by the Justice Department to be infringing, but against which no action had been taken.[9] Any service provider who willingly took steps to block access to sites on this second list would gain immunity from prosecution under this bill.[10]

Oregon Democratic Senator Ron Wyden opposed the bill after it passed the Senate Judiciary Committee on November 18, 2010, saying that unless it is changed, he will prevent it from coming to a vote on the full Senate floor this year.[19] He said:

It seems to me that online copyright infringement is a legitimate problem, but it seems to me that COICA as written is the wrong medicine. Deploying this statute to combat online copyright infringement seems almost like using a bunker-busting cluster bomb when what you really need is a precision-guided missile. The collateral damage of this statute could be American innovation, American jobs, and a secure Internet.[20]