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January 14, 2012
Copyright and trademark infringement on the Internet is a very real problem, and reasonable proposals to augment the ample array of enforcement powers already at the disposal of IP rights holders and law enforcement officials may serve the public interest. The other side of the issue is the future of communication on the Internet.
The US Congress is about to pass what has been called the internet censorship bill. The legislation called the PROTECT-IP Act (PIPA) in the Senate and the Stop Online Piracy Act (SOPA) in the House are purported to be a way to crack down on online copyright infringement. In reality the bill is much broader.
In the Stanford Law Review Mark Lemley, David S. Levine, & David G. Post argue that the bills take aim not at the Internet’s core technical infrastructure:
the bills represent an unprecedented, legally sanctioned assault on the Internet’s critical technical infrastructure. Based upon nothing more than an application by a federal prosecutor alleging that a foreign website is “dedicated to infringing activities,” Protect IP authorizes courts to order all U.S. Internet service providers, domain name registries, domain name registrars, and operators of domain name servers—a category that includes hundreds of thousands of small and medium-sized businesses, colleges, universities, nonprofit organizations, and the like—to take steps to prevent the offending site’s domain name from translating to the correct Internet protocol address. These orders can be issued even when the domains in question are located outside of the United States and registered in top-level domains (e.g., .fr, .de, or .jp) whose operators are themselves located outside the United States; indeed, some of the bills’ remedial provisions are directed solely at such domains.
Directing the remedial power of the courts towards the Internet’s core technical infrastructure in this sledgehammer fashion has impact far beyond intellectual property rights enforcement—it threatens the fundamental principle of interconnectivity that is at the very heart of the Internet. It undermines the principle of domain name universality—the principle that all domain name servers, wherever they may be located across the network, will return the same answer when queried with respect to the Internet address of any specific domain name.
They also argue that the bills also take aim at the internet's economic and commercial infrastructure as well. Credit card companies, banks, and other financial institutions could be ordered to “prevent, prohibit, or suspend” all dealings with the site associated with the domain name. Online advertisers could be ordered to cease providing advertising services to the site associated with the domain name. Search engine providers could be ordered to “remove or disable access to the Internet site associated with the domain name,” and to disable all hypertext links to the site.
These drastic consequences would be imposed against persons and organizations outside of the jurisdiction of the U.S. courts by virtue of the fiction that these prosecutorial actions are proceedings in rem, in which the “defendant” is not the operator of the site but the domain name itself.
Both bills suggest that these remedies can be meted out by courts after nothing more than ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her “property.”
This not only violates basic principles of due process by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech protected by the First Amendment of the US Constitution.
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