In early 2011, Google, Wikipedia, Facebook, Reddit and others brought a coordinated public relations offensive against the two embattled bills known as the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA). Consequently, both bills are now essentially considered dead.
The rhetorical volley in the media was apocalyptic. According to many of the Internet’s most trafficked websites, SOPA and PIPA threatened nothing less than the total annihilation of free speech on the Internet and was tantamount to fascistic censorship.
Meanwhile, the bills’ supporters, including most major pharmaceutical companies, book publishers, sports leagues, movie studios and fashion designers, had likewise vocally demanded that SOPA and PIPA be enacted immediately, fearing the irreparable damage caused by Internet pirates operating foreign websites to sell counterfeit goods and offer pirated software, music and movies to U.S. consumers.
The hype and controversy surrounding both bills, however, obscured two fundamental truths.
First, online piracy and counterfeiting perpetrated by foreign “rogue” websites will continue to pose a very serious and ever expanding danger to content creators, brand owners and consumers alike.
However, even if the proposed controversial laws had passed in their flawed forms, they would have likely 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 U.S. Department of Justice to shut down foreign websites primarily engaged in counterfeiting and piracy (and the third parties that knowingly aid and abet them), SOPA and PIPA would not have actually altered existing law significantly in that regard. In fact, federal courts already possess the legal power to shut down foreign websites that are directly engaged in offering illegal goods to U.S. consumers.
In numerous cases that I have litigated on behalf of major fashion brands and other intellectual property owners, federal courts have consistently held that as long as minimum personal jurisdiction and procedural due-process thresholds have been met, the anonymous “John Doe” owners of rogue websites may be sued in the U.S., and served legal process through e-mail. If they ultimately do not show up to defend themselves and thereby default, in addition to forfeiting all the domain names at issue, they can owe millions of dollars in damages to the plaintiffs.
Moreover, independent judicial review ensures that each of the targeted rogue websites is engaged in bald-faced counterfeiting and piracy, and that no free speech rights protected by the First Amendment are implicated.
An alternative policy proposal to address the ongoing legitimate concerns about online piracy is a relatively minor change to existing law, which is to require verification and disclosure of registrant identifying information.
When a person or business registers a new Internet domain name, they must provide administrative and contact information to the private Internet registrar and official Internet registry of record. In the case of most rogue websites, the information provided is obviously fictitious, including many instances where hijacked domain names were registered to “Mickey Mouse” and “Ronald Reagan.”
Further, private Internet registrars are permitted to shield even this bogus information from public disclosure (for a recurring fee to the registrant, of course). Under current Internet Corporation for Assigned Names and Numbers (ICANN) policy, Internet registrars and registries are under no meaningful obligation to verify or publicly disclose the true registrant of a domain name.
Consequently, millions of Internet domain names and their related websites remain effectively anonymous and hidden behind a valuable cloak of secrecy purchased from Internet registrars. However, if forced to provide genuine personal information, even registrants located overseas could be subject to asset seizures and other serious consequences if found liable for engaging in online piracy and counterfeiting. In addition, registrars and other Internet providers would be able to reliably discern the users involved in the violation of intellectual property rights, and to deny them access to their services going forward.
Amending U.S. law and Internet policy to require all Internet registrars and official registries to actually verify and publicly disclose identifying information about the registrants of newly-created domain names would shine a disinfecting light on the Internet, and go a long way to curb online piracy and counterfeiting, and without meaningfully threatening free speech online. We demand such strict requirements of our financial and credit institutions, and should expect no less from Internet registrars, just because their transactions occur online.