Make Sure “Rogue Websites” Legislation Doesn’t Target Legitimate Companies, Says CEA

In response to today’s U.S. Senate Committee on Judiciary’s hearing, “Targeting Websites Dedicated to Stealing American Intellectual Property,” the Consumer Electronics Association (CEA)^® released the following statement:

“CEA supports strong intellectual property enforcement, and balanced intellectual property law that protects the rights of authors and inventors while preserving and encouraging innovation. CEA members share concerns about theft of intellectual property, including trademark, patent and copyright. However, we are concerned that certain provisions of S.3804, the ‘Combating Online Infringement and Counterfeits Act’ (COICA) as introduced at the end of the last session, could inadvertently ensnare legitimate manufacturers, retailers and online service providers.

“Our primary concern is that the scope of S.3804 (111th) was significantly broader than its intended purpose of shutting down ‘rogue’ or foreign websites solely engaging in the exchange of pirated content or goods. By targeting any site that could ‘enable’ or ‘facilitate copyright infringement,’ it would erode the Supreme Court’s landmark Betamax decision that protects technology products with substantial non-infringing uses. For example, a legitimate consumer electronics retailer’s website could be subject to seizure by the Department of Justice since printers and computers for sale on it could be used to ‘enable’ copyright infringement. While the targeting of legitimate commerce was undoubtedly not intended by the bill’s drafters, the text as written does in fact authorize such overreaching and harmful actions.

“Finally, the definition of ‘enable’ or ‘facilitate,’ invites a claim that the law establishes a new secondary liability concept, making U.S. Internet companies liable for inadvertently ‘enabling’ or ‘facilitating’ the conduct of third parties. This runs contrary to 13 years of well-settled federal policy under the Digital Millennium Copyright Act (DMCA). Such claims could ensnare legitimate U.S. social media platforms, video sharing sites, auction sites, third-party retail sites, grey-market sales sites, and countless sites that are overwhelmingly lawful and integral to the U.S. economy.

“As an industry that relies on intellectual property protection, we suffer the damaging effects of counterfeit products in international trade. We are committed to working closely with copyright owners to shut down websites that are truly dedicated to piracy. However, we urge this committee to proceed deliberately with this legislation and make the necessary revisions to ensure that COICA does not inadvertently criminalize legitimate U.S. retailers, Internet companies and manufacturers.”

About CEA:

The Consumer Electronics Association (CEA) is the preeminent trade association promoting growth in the $186 billion U.S. consumer electronics industry. More than 2,000 companies enjoy the benefits of CEA membership, including legislative advocacy, market research, technical training and education, industry promotion, standards development and the fostering of business and strategic relationships. CEA also sponsors and manages the International CES – The Global Stage for Innovation. All profits from CES are reinvested into CEA’s industry services. Find CEA online at www.CE.org.