Federal Safe Harbor for Big Media Company Vigilantism?

One thing to be thankful for this Thanksgiving Day is Senator Ron Wyden's efforts to stop S.3804, the "Combating Online Infringement and Counterfeits Act" sponsored by Senator Leahy. The Washington Post reported this week that Sen. Wyden will likely be able to delay Senate action on the bill until next year.

Sen. Leahy's bill was most notorious for calling on the Attorney General to establish a blacklist of domain names that, "upon information and reasonable belief," would be determined by the Department of Justice to be "dedicated to infringing activities." That provision has been stricken from the bill as reported on November 18.

Senator Leahy has a press release page with a link to a file that summarizes how the original bill has been modified, but I wasn't able to find an actual redline. I did find a Government Printing Office "blackline" but it is not helpful; it merely strikes the entire text of the bill as introduced and substitutes a clean, restated version! So, I ran my own redline and posted it to JD Supra, here. (Subject for another day: why do legislators go out of their way to obscure the changes they make to proposed legislation?)

The following new provision pops out in the redline:

"VOLUNTARY ACTIONS- No domain name registry, domain name registrar, financial transaction provider, or service that provides advertisements to Internet sites shall be liable to any person on account of any action described in this subsection voluntarily taken if the entity reasonably believes the Internet site is dedicated to infringing activities or to prevent the importation into the United States of goods or services described under subsection (a)(2) offered by such an Internet site."

I've tried to read this addition several times in context, hoping to find that it merely functions to insulate entities that cooperate with the DOJ and the courts in proceedings pursuant to the Act. But there was already a section in the bill that covered that point, and that prior section is still there.

It would appear that the new section is a safe harbor for actions media companies might take, without cover of an actual court order under the Act, to do their own private policing of "infringing activities!"