In early 2011, Google, Wikipedia, Facebook, Reddit and others carried out a coordinated public relations crackdown on the two conflicting bills known as the Stop Online Piracy Act (SOPA) and the Protection Act. of Intellectual Property (PIPA). Consequently, both bills are now considered essentially dead.
The rhetorical discharge in the media was apocalyptic. According to many of the most trafficked websites on the Internet, SOPA and PIPA threatened nothing less than the total annihilation of freedom of expression on the Internet and amounted to fascist censorship.
Meanwhile, supporters of the bills, including most of the major drug companies, book publishers, sports leagues, film studios and fashion designers, had also loudly demanded that the SOPA and PIPA be enacted immediately, for fear of irreparable damage caused by Internet hackers operating foreign websites to sell. counterfeit products and offer pirated software, music and movies to American consumers.
However, the hype and controversy surrounding both bills obscured two fundamental truths.
First, online piracy and counterfeiting perpetrated by “rogue” foreign websites will continue to pose a very serious and growing danger to content creators, brand owners and consumers alike.
Yet even if the controversial proposed laws had been passed in their flawed forms, they likely would have done little to effectively combat online piracy, which is largely encouraged by the virtual anonymity that current internet policy encourages.
Second, while the proposed legislation would have given additional powers to the US Department of Justice to shut down foreign websites that are primarily engaged in counterfeiting and hacking (and third parties who knowingly aid and instigate them) , SOPA and PIPA would not have altered the existing websites. the law significantly in that regard. In fact, federal courts already have the legal power to shut down foreign websites that are directly engaged in offering illegal products to American consumers.
In numerous cases where I have litigated on behalf of major fashion brands and other intellectual property owners, federal courts have consistently held that, provided minimum thresholds of personal jurisdiction and due process have been met, owners Rogue anonymous “John Doe” Websites can be sued in the US and receive legal process via email. If they ultimately fail to come forward to defend themselves and thus default, in addition to losing all the domain names in question, they may owe millions of dollars in damages to the plaintiffs.
In addition, independent judicial review ensures that each of the targeted fraudulent websites is blatantly involved in counterfeiting and hacking, and that no Free Speech rights protected by the First Amendment are implicated.
An alternative policy proposal to address current legitimate concerns about online piracy is a relatively minor change to existing law, which requires verification and disclosure of the registrant’s identifying information.
When a person or company registers a new Internet domain name, they must provide administrative and contact information to the private Internet registrar and the official Internet registry of registry. In the case of most fraudulent websites, the information provided is obviously fictitious, including many cases where the hijacked domain names were registered with “Mickey Mouse” and “Ronald Reagan.”
Furthermore, private Internet registrars can protect even this false information from public disclosure (for a recurring fee to the registrant, of course). Under current policy of the Internet Corporation for Assigned Names and Numbers (ICANN), Internet registrars and registries have no significant obligation to verify or publicly disclose the true registrant of a domain name.
Consequently, millions of Internet domain names and their related websites effectively remain anonymous and hidden behind a valuable cloak of secrecy purchased from Internet registrars. However, if forced to provide genuine personal information, even registrants located abroad could be subject to asset seizures and other serious consequences if they are held liable for engaging in online piracy and counterfeiting. In addition, registrars and other Internet providers could reliably discern users involved in the infringement of intellectual property rights and deny them access to their services in the future.
Amending US law and Internet policy to require all Internet registrars and official registries to verify and publicly disclose identifying information about registrants of newly created domain names would shed a sanitizing light on the Internet and would go a long way towards curbing online piracy and counterfeiting without significantly threatening freedom of expression online. We demand such stringent requirements from our financial and credit institutions, and we shouldn’t expect less from internet registrars, just because their transactions are conducted online.