Published on 18 October 2011 @ 2:35 pm
Inside Views: To Stem Infringement, Block Money – Not Information
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Intellectual Property Watch
The Protect IP Act, currently pending in the United States Senate, contains a range of steps designed to support the holders of American copyrights and trademarks by fighting a specific part of the online infringement problem: “rogue” websites whose primary or intended use is the infringement of US copyrights or trademarks. The bill would take promising new steps to diminish the financial rewards of IPR infringement – but it is saddled with ill-advised information blocking provisions that should, and probably will, be prevented from passing the Senate in its current form.
The most powerful tool for copyright and trademark owners in the new bill is likely its private right of action, which permits them to obtain court orders cutting off a targeted internet site’s sources of revenue. Such orders would force payment processors and online advertising services to stop doing business with the targeted site – cutting off the site’s ability to collect payments from its users via major payment methods, or to enjoy revenue from the largest and most important advertising placement networks.
For commercially motivated IPR infringement, these steps could make all the difference: they don’t make infringement any harder to do, but they might make it a lot harder to profit from. A site that sells counterfeit goods cannot function – indeed, cannot sell anything – unless it can somehow collect payment from customers. Similarly, for sites that focus on digital media, subscriptions and individual downloads can’t be sold unless payment can be collected. Even a site whose operator only wants to cover his costs could have trouble, if the usually simple step of turning web traffic into revenue via advertising is no longer feasible. These remedies are available against sites based anywhere in the world, and they are likely to be useful because the ultimate sources of revenue for such sites are often American: an American buyer of handbags, or a US-based online advertising service, will fall within the reach of US law no matter where the site is based with which they do business.
The current bill’s fatal flaws lie in another area – the ineffective but collaterally damaging steps it would take against certain offshore internet sites. To understand those proposals, and to appreciate what is wrong with them, requires a little bit of background about the internet’s Domain Name System (DNS).
DNS is what makes numeric internet addresses, like 188.8.131.52, reachable at familiar domain names like ip-watch.org. It relies on a hierarchical system of interlocked authorities to keep track of which name corresponds to which address. The top authorities are known as “registries,” and there is only one registry for each domain name ending: .com, .org, .uk, and the like.
The United States, by historical accident, happens to host within its territory the crucially important registry for all domain names ending in .com. This gives US authorities the practical power to force changes in the .com registry, for example by forcing a domain name formerly used by a piracy-oriented website to instead point toward the numeric address of a government controlled server that displays an anti-piracy warning banner.
Beginning in June 2010, US authorities have done just that, employing a controversial legal process to “seize” targeted domains, in a program known as Operation In Our Sites. These seizures have automatic and worldwide effect, since they change the official information about a particular web site. But they can, and sometimes do, go badly wrong: if a domain name is seized, then everything at that name – not just the particular content that prompted the seizure – becomes unreachable at its familiar address. In one case, when authorities tried to apply the In Our Sites technique to disrupt child pornographers, they inadvertently seized more than 80,000 other sites unrelated to their targets, because those sites shared the same seized domain name; for several days, visitors to these innocent sites saw a banner that suggested the site operator had violated child pornography law. The legal theory underpinning these seizures would, if valid, appear to empower US law enforcement to seize a wide range of domains, including those of sites not dedicated to infringement – an issue I explore in more detail in the working paper linked below.
Such steps disrupt the targeted site in a highly visible way – but they have little lasting impact, because the actual web server of the targeted site (which is unaffected by the seizure) can simply register for a new and different domain name, in a registry not hosted under US jurisdiction.
Notwithstanding its legal controversy and questionable efficacy, the In Our Sites program works within the existing DNS system, by changing the authoritative listings on which the system relies.
The Protect IP Act would take an extreme further step: blocking the flow of information across national boundaries. For offshore sites whose domains cannot be seized, the law would empower officials to obtain a court order forbidding American internet service providers from providing accurate DNS information about the targeted site. In other words, if it worked as intended, the Protect IP Act would stop Americans from being able to reach a foreign site that was alleged not to comply with US law. (Technically literate users, a minority of the population, can circumvent this blockage with low effort, but for people who don’t know better, the site would be out of reach. If such blockages became more common, it is reasonable to expect that software settings to get around them would quickly spread.)
Similarly, the law would provide for court orders that could compel search engines to remove all links to a targeted web site – even links to material that does not infringe.
These provisions seek to block some internet addressing information from reaching network participants, and to block whole sites from search engine results. They are deeply ill-advised. Flexible and dynamic software tools – some of them funded by the US government as part of anti-censorship efforts – have already begun to undermine this prospective enforcement strategy at a technological level. In the longer term, the Act’s tendency to encourage abandonment of the current domain name system could erase significant amounts of American wealth, already invested in prestigious and valuable .com domain names.
Fortunately, the Protect IP Act’s most useful provisions – the financial ones – are also its least controversial. Shorn of its most problematic and least effective provisions, the Protect IP Act could become a targeted measure designed to cut off financial support for commercial-scale piracy and counterfeiting havens.
David G. Robinson is a Knight Law & Media Scholar in the Information Society Project at Yale Law School. This op-ed is based on his recent working paper, Following the Money: A Better Way Forward on the Protect IP Act.
[Editor's Note: the full name of the Protect IP Act, S. 968, is the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act." The latest version of the legislation is available here (pdf). Recent Intellectual Property Watch stories on the subject include here and here.]
Categories: Access to Knowledge, Copyright Policy, Education/ R&D/ Innovation, Enforcement, English, Finance, Human Rights, Information and Communications Technology/ Broadcasting, Inside Views, IP Law, Trademarks/Geographical Indications/Domains, US Policy