Ars Technica reports about a bill that was introduced today:
If passed, the Justice Department could ask a federal court to for an injunction that would order a domain registrar or registry to stop resolving an infringing site’s domain name, so that visitors to PirateBay.org, for example, would get a 404 error.
The idea of an “infringing site” may be a legally tricky one. While it may host some material that infringes someone’s copyright, it also likely hosts a great deal of original information. This original stuff counts as speech, and as such receives a high deal of protection under the First Amendment. I don’t think this kind of “prior restraint” would ever withstand judicial review.
From the bill:
an Internet site is ‘dedicated to infringing activities’ if such site:
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 [a.k.a. copyright], 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
As suspected, the “primarily designed” language is potentially difficult to nail down. The infamous Pirate Bay even includes links and information about copyright which I believe may legitimately be considered political speech (especially given that they have a party, as well as the Bay).
More from the bill:
On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any infringing activity in violation of this section
The bill goes on to state that the Attorney General could order the domain registrar to “suspend operation” and “lock” offending domestic domains, and that ISPs shall “take reasonable steps that will prevent a domain name from resolving to that domain name’s Internet protocol address” for foreign domains.
I find this an incredibly dangerous proposal for free speech and online communication.