Apparently we’re not out of the legislation woods yet. Here’s a new bill introduced late yesterday by Senators Leahy and Hatch: S. 3804, the “Combating Online Infringement and Counterfeits Act” (THOMAS | PDF). Analysis to follow, but it sounds like it hinges on prosecution of foreign websites by allowing the Department of Justice to bring infringement actions using in rem jurisdiction. On first impression, I agree in spirit with the bill, but I worry about the shift from viewing copyright infringement as a series of discrete torts to looking at a website being more generally “dedicated” to infringing activity. The definition seems tailored enough (at first read), but heavy-handed application is hardly implausible. That said, I have faith in the CCIPS‘s prosecutorial discretion. I’d be far less sanguine were this law to have a civil action as well.
According to the BNA the bill is slated to be marked up in committee on Thursday. I’m no expert on legislative procedure, but that strikes me as a decidedly fast track.
Update: more from Wendy Seltzer, ZDNet, The Hill, The Hollywood Reporter, Billboard, Slashdot, Wired, BoingBoing… apparently I was a little late to this party. Some very bright people here are raising some serious concerns, mainly around how easily the DoJ can bring these actions, and how little the website is involved in the dispute. I’m inclined to believe the transparency elements of this would mitigate this concern, but this could certainly benefit from some form of website notice procedure. More to follow.