Policing the Internet

Hollywood studios, record labels and other U.S. copyright and trademark owners are pushing Congress to give them more protection against parasitical foreign websites that are profiting from counterfeit or bootlegged goods. The Senate Judiciary Committee has responded with a bill (S 968) that would force online advertising networks, credit card companies and search engines to cut off support for any site found by the courts to be “dedicated” to copyright or trademark infringement. Its goals are laudable, but its details are problematic.

The global nature of the Internet has spawned a profusion of websites in countries that can’t or won’t enforce intellectual property law. Under S 968, if a website were deemed by a court to be dedicated to infringing activities, federal agents could then tell the U.S. companies that direct traffic, process payments, serve advertisements and locate information online to end their support for the site in question. Copyright and trademark owners would be able to follow up those court orders by seeking injunctions against payment processors and advertising networks that do not comply.

Cutting off the financial lifeblood of companies dedicated to piracy and counterfeiting makes sense. A similar approach to illegal online gambling has shown that it is technically feasible for payment processors to stop directing dollars from U.S. bettors to gambling sites anywhere in the world. The operators of the largest online advertising networks say they can do the same, although they object to the bill’s proposal to let copyright and trademark owners seek injunctions against them.

The main problem with the bill is in its effort to render sites invisible as well as unprofitable. Once a court determines that a site is dedicated to infringing, the measure would require the companies that operate domain-name servers to steer Internet users away from it. This misdirection, however, wouldn’t stop people from going to the site, because it would still be accessible via its underlying numerical address or through overseas domain-name servers.

A group of leading Internet engineers has warned that the bill’s attempt to hide piracy-oriented sites could hurt some legitimate sites because of the way domain names can be shared or have unpredictable mutual dependencies. And by encouraging Web consumers to use foreign or underground servers, the measure could undermine efforts to create a more reliable and fraud-resistant domain-name system. These risks argue for Congress to take a more measured approach to the problem of overseas rogue sites.