The last few months have seen the Internet facing one of its most significant challenges in relation to its basic freedoms. It all started with the Combating Online Infringement and Counterfeits Act (COICA), which then became the Protect IP Act (PIPA) and, in its worst manifestation, the Stop Online Piracy Act (SOPA). The common denominator of all these legislative proposals is the apparent willingness of the intellectual property industry to fight piracy and other types of infringement of intellectual property rights – at any cost. I emphasize ‘at any cost’ because this is the point where the legitimate claim to deal with piracy turns into an indecent war, waged against the Internet’s and society’s fundamental freedoms. In this regard, the fact that parts of the most powerful intellectual property interests are not willing to understand the new reality of digital content and creativity, creates a unique problem for a society, which has become so ‘gracefully’ attached to the Internet that it turns into a story worth-telling for the generations to come. It is really important, therefore, that we (at least) pay attention to some issues that have manifested themselves through this process.
The first thing we can observe from this almost 18-month exercise is that intellectual property protection has become the driver of Internet governance. The protection of copyrights and trademarks has lately dominated all Internet governance discussions at the ICANN, the OECD, the European Union and IGF levels – to name but a few. Camps for both sides have been created and debated extensively, whilst America has been sending conflicting messages regarding its own vision of Internet freedom. The world has heard the Secretary of State Hillary Clinton declaring America’s support for Internet freedom, whilst simultaneously witnessing an attempt by the US Congress to pass PIPA and SOPA, suppressing these very freedoms. At an international level, this insistence on intellectual property has given the Internet governance debate a problematic agenda, which focuses on one specific issue. It has distracted attention from other significant issues, creating a faux presumption that the Internet is all about intellectual property rights and their protection.
Another (anthropological) observation is that everybody seems to be talking about piracy - children, grannies, academics, politicians, journalists, civil society groups, the Hollywood, Record Labels, famous and independent artists, the Internet community - all take sides in favour or against the American proposals. Editorials have been written on the impact of PIPA and SOPA and Twitter has been on fire with hashtags encouraging followers to ‘retweet’ and raise awareness. This is significant. The fact that, unlike previously, such a debate is no longer happening within some closed doors of an international organization or other political institution, but instead everybody is involved is truly impressive and we should not take it lightly. This is the greatness of the Internet – it has spread the word that the US is proposing legislation that will change the way we interact on the Internet. And, Internet users have reacted. They are discussing it on Facebook, they blog and tweet about it, they follow and post comments and, in general, they engage in a debate they feel directly concerns them.
Here, an observation of governance can also be made: multistakeholderism is working. In this framework of stakeholder cooperation, we have experienced many changes and shifts. Actors have become more involved and much of the debate on piracy has turned into a debate about freedom of speech, American imperialism and the future of the Internet. Suddenly, the intellectual property community is left behind and civil society groups with the technical community have come together to support the Internet. This was an organic alliance and it appears to be based on the fact that the intellectual property community has managed to alienate the rest of the Internet community. Throughout this exercise, the intellectual property community denied to listen to the techies, who were warning about the dangers of tampering with the DNS and the infrastructure of the Internet; civil society groups were neglected when they talked about the impact on these proposals on free speech, requesting a balanced approach that respects the rights of fair use and freedom of expression. So, the IP folks should really not be frustrated that discussions on PIPA and SOPA were put to rest for the time being and many of their supporters are changing sides. This happened because, in a true multistakeholder environment, where Wikipedia, Amazon, Google and Facebook protest along with civil society, their voices are heard over and above businesses. This is the Internet at its very best.
An additional (political) observation is the wrong incentives SOPA and PIPA can provide to other countries. It has long been a stated fact that certain countries are unhappy with the existence of the “A” Root in the US and the de facto control the US Government appears to have on the DNS. This is a great opportunity for these countries to make some more noise. The fact that both SOPA and PIPA wish to manipulate domain names by taking them down, redirecting them or filtering their content can be a very persuasive argument against the kind of management and administration the US government is exercising upon this global Internet resource. What appeared to be a pure political argument becomes a legitimate one. This, of course, does not suggest that any other country will do a better job, but it certainly attests to the very fact that the US is failing to uphold its end of the deal and conduct appropriate administration of the DNS.
Finally, another (necessary) observation is that this is not the end of the road for either of these proposals or for the overall debate on intellectual property. This is fine. But, the nature of the debate now has to change; it cannot continue under the same premise that only existing creating industries should be protected and it can certainly not continue with only one participant on the negotiations table. The intellectual property community needs to start engaging with the other stakeholders and needs to listen. International institutions, where required, need to step up and need to become careful observers of this debate; civil society groups need to continue tirelessly their work and effort; the technical community needs to persist on preserving the stability and security of the network; and, governments, need to start resisting their lobbying processes and their lobbyists.
Following this debate closely myself, I feel many times like I am watching a Hollywood blockbuster movie - A movie about destruction, revenge, alienation and division, starring the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the US Congress. Guest stars: Google, Wikipedia, Amazon, Facebook, Twitter, Anonymous and civil society.
New generic Top-Level Domain Names (gTLDs) are all about innovation, entrepreneurship and creativity; they are about identifying new entrants, opening up competition and providing the domain name market with the opportunity to explore new means of interaction on the Internet. Equally, new gTLDs are a great opportunity for existing businesses and brands to reconsider their business practices and models and to adapt to new commercial realities and ideals. In both cases, however, it is important that some basic rules and principles are maintained so that terms are not abused, terms are assigned to their rightful owners and, where there are no rightful owners, a robust and fair process is in place to ensure that the assignment of words is done in a manner that does not endanger the Internet, does not confuse consumers or does not obstruct current societal structures.
I, for one, have been a proponent of new gTLDs from the early days of their policy development process within ICANN. I always believed that the existing gTLDs – and mainly the .com space – have created artificial scarcity, which is primarily responsible for much of the cybersquatting and the abuse trademarks experience. I do not share the same fears as those who argue that new gTLDs will create intolerable levels of cybersquatting or will necessitate defensive registrations from brand and trademark owners alike. As for the policy itself, I do not believe it is perfect and I feel that, for certain issues, ICANN could have taken a different direction, but, ultimately I recognize and respect ICANN’S multistakeholder governance structure and the decisions that have come out of it.
Lately, however, something has caught my attention, which can potentially create problems. Almost the same day ICANN opened up its application process, a tiny start-up was granted
by the United States Patent and Trademark Office (USPTO) a trademark for .bank (registration number 4085335). What is the problem with this? The problem is twofold: first of all, there is a general principle within traditional trademark law, which instructs that generic terms cannot be trademarked if they are to reflect what the term means. In this context, a company would not be able to register the word coffee and sell coffee. This would provide an unfair competitive advantage to any company and would, most likely, excommunicate all other similar companies selling coffee. Secondly, by granting this application, the USPTO is essentially leaving ICANN and its Governmental Advisory Committee (GAC) with a big problem. Part of the whole exercise regarding the role of the GAC within the new gTLD process related to the GAC’s role; this issue was resolved with the agreement that the GAC would be in the position to provide early advice to any new gTLD application, effectively giving the GAC the right to torpedo and determine the success of an application, which the GAC believes it raises issues of cultural significance or is contrary to national laws. To this end, it is exactly names like .bank that the GAC had in mind when they were pushing ICANN to insert this provision within the Applicant Guidebook: “[The GAC may advise] ICANN that there are concerns about a particular application ‘dot-example’. The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision”.
Now, with the USPTO granting trademark rights for .bank, this early warning mechanism becomes superfluous, and multiple rights are created for .bank. On the one side, there are the rights of the trademark owner; on the other, there is the GAC which believes that the term .bank is sensitive enough to interfere and whoever applies needs to go through a scrutiny process; and, finally, there is also the rumoured applicant of .bank – a joint effort made by the American Bankers Association (ABA) and BITS, part of Financial Services Roundtable. So, in practical terms, what the USPTO has essentially done is to provide the opportunity to an independent entity to object the application of .bank by asserting valid trademark rights.
So, this is a mess and a mess that will only get worse unless trademark offices around the world stop granting trademark registrations to .generics. The way things are right now, the GAC may sign off the .bank gTLD to ABA and BITS, but the owner of .bank will have valid claims to stop this application process or at least demand some sort of financial compensation for giving up the name to someone else. And, if he is really pissed off or he wants to retain .bank for his own personal use, he can then sue for trademark infringement. In any case, the trademark owner is the only winner here and both the GAC and the American Bankers should feel very pissed off with the USPTO. At this stage, the only solution is for the USPTO to accept that they screwed up and recall this trademark.