Hunting “Rogue Sites”

But free access is exactly what several websites seek to provide, by posting illicit copies of copyrighted works, without permission from or compensation for the publisher and author – most notably, popular locker sites like RapidShare, Megaupload, and 4shared.

The problem of online piracy may not seem like a substantial threat to some university presses, at least not one worth the time and money its prevention demands. But current studies show that the number of free copies of books –university press books included – continues to proliferate, especially as new e-book readers gain popularity. Anecdotally, university presses employing takedown services tend to turn up hundreds, if not thousands, of illicit copies of their works.

While takedown services offer an effective means of preventing pirated postings, for a fee, the principle remains: providing illicit copies of copyrighted works is theft; theft is illegal; clear legal measures should be in place to combat any form of theft. That’s where current legislation is lacking. Senator Patrick Leahy (D-VT) and the Senate Judiciary Committee are aiming to combat online infringement by drafting the “Combating Online Infringement and Counterfeits Act,” introduced to Congress on September 20.

The proposed legislation defines which sites would be considered infringers, including in the definition both locker sites (the sites where the works are available for download) and indexing sites (sites that have no downloadable content but provide links to sites that do). Legal action taken against these sites would be expedited by a standard procedure: the Attorney General would be allowed to issue an injunction against the domain name of such sites, and commence an in rem action to block the site’s domain name. Infringing websites based in other countries would be protected from direct legal action, but their domains would be blocked via the service provider and other third-party connections, such as credit-card processors and advertisers. And all infringing sites, domestic or international, would be included in a public listing from the Attorney General’s office.

The bill has won enthusiastic support from many copyright industries because of its broad scope: any copyrighted or trademarked work would be protected from infringement. The music and film industries, for example – represented by the Copyright Alliance, the Recording Industry Association of America (RIAA), the American Society of Composers, Authors and Publishers (ASCAP), the Screen Actors Guild (SAG), and the Motion Picture Association (MPA) – have publicly endorsed the anti-piracy bill. Of course, the act also has its opponents. The software development industry sees the bill as an obstacle to economic and technological innovation. And some First Amendment advocates argue that the bill would give the government undue authority to control and block speech.

The bill’s ultimate success seems to hinge on how well the committee can define – and thus enforce – “infringing sites,” which was the central topic of debate when a draft was presented to the AAP Online Piracy Working Group this summer. Some proposed expanding the definition, arguing that the draft bill’s definition of infringing sites as those whose “sole purpose” was “based in the illegal distribution of copyrighted or trademarked works” would be too easy to circumvent. Others had concerns about how, exactly, the primary purpose of a website could be measured. Similar debates have since arisen in the public forum now that the bill has been brought to the floor. As of publication, the bill has referred to committee after being read before Congress in September.

Regan Colestock
Communications Coordinator, AAUP