We conservatives agree that the federal government should be smaller, less costly and less intrusive. We also believe in the rule of law, the enforcement of our law, and the Constitution as written. In other words, true conservatives understand that there are some functions of government that serve a necessary purpose and that are required by the Constitution. In that vein, laws giving the federal government the authority to prevent massive theft of American products would normally be welcomed by conservatives.
Article I of the Constitution explicitly charges Congress with making laws to protect intellectual property: “The Congress shall have the power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Our founding fathers understood that the creative genius of the American people was our greatest national resource and deserved protection.
So I was a bit chagrined to discover that several prominent conservatives are supporting the ACLU and human rights groups to thwart legislation that would allow the attorney general to apply for a court order to stop websites that go offshore in order to escape being punished for selling counterfeit American goods.
The Combating Online Infringement and Counterfeits Act of 2010 (COICA), a bill with several Republican and Democrat co-sponsors, allows the Attorney General of the United States to apply to a federal judge to block American aid, funding and assistance to Internet sites located offshore that are wholly dedicated to the counterfeiting and theft of American goods and intellectual property.
For instance, the AG could go to a federal judge to block aid to a fake online pharmacy located offshore that illegally sells counterfeit drugs or to a site dedicated to massive online piracy of American works, such as the Ukraine-based MP3Fiesta. This is the same power the government now uses domestically to seize domain names of sites that commit these crimes. Why should we be rendered powerless when these sites go offshore to rip off Americans? We may not be able to seize them when they go offshore like we do in the U.S., but we certainly don’t have to help them by providing our market to them or assistance in making money from their crimes. We take action like this in the physical world at our borders all the time. But our principles and protections should go out the window when criminals use the Internet to hurt us, and escape to an island to do it?
Stopping counterfeiting and theft is not “Internet censorship,” as breathlessly described by the website created to stop the bill. It is simply an attempt to stop people from engaging in the counterfeiting and online theft of American products that is the sole purpose of these rogue sites.
Full disclosure — I have represented copyright and patent-based businesses for years. As a conservative, I have always felt that it is our duty to protect the products, whether tangible or intellectual, that are born of the hard work of our citizens. When the Supreme Court, led by conservatives, ruled 9-0 in MGM v Grokster in 2005 that wildly popular peer-to-peer websites were really just profiting from “garden variety theft,” I was gratified that the Court spoke with one voice in reaffirming the values expressed in Article I. In essence, the Court said that just because technology allows you to do something doesn’t mean that it is legal or should be allowed.