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.
The strong enforcement of intellectual property rights has been one of the most discussed topics and Internet sites and blogs (including this one) have dedicated much analysis on the latest twists concerning domain name takedowns, draconian copyright measures and, in general, the place intellectual property occupies within different Internet Governance fora. In the context of these discussions, I have started lately to wonder how strong enforcement of intellectual property rights can be justified in light of the commitments made by the liberal state to promote Internet freedom; because, at least from the outset and in light of recent intellectual property legislation around the world, these actions appear highly incompatible. (Only in the US, for instance, we have been exposed to three different legislative proposals – the Combating Online Infringement and Counterfeits Act (COICA), the PROTECT IP Act and the E-PARASITE Act – all of which have made the relationship between intellectual property and free speech harder than ever before). Considering that the common feature of all these proposals is to put in place strong enforcement mechanisms for the protection of intellectual property and given that this idea is slowly spreading (perhaps not as vociferously) in other parts of the world, how will Internet freedom and the principles associated with it (free speech, freedom of expression, etc.) also be sustained?
I was hoping that the recent letter sent by US Secretary of State, Hillary Clinton, could shed some light on what appears to be an issue regarding two highly incompatible and irreconcilable concepts. According to Secretary Clinton, “there is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of speech on the Internet”. Secretary Clinton is right-intellectual property and freedom of expression walk hand in hand – at least in theory. (I, also, don’t consider intellectual property and free speech incompatible or irreconcilable; it is rather the direction that intellectual property is taking that I see as making the relationship between intellectual property rights and free speech antagonistic and inconsistent). But, the letter does not do this job. Instead, Secretary Clinton re-affirms the US Government’s earlier commitment to protect both intellectual property rights and Internet freedom, without going, however, into much detail as to how this can be achieved.
There is, however, reference to the rule of law and this is something that I find particularly a very important point. According to the letter: “The rule of law is essential to both Internet freedom and protection of intellectual property rights, which are both firmly embedded in US law and policy”. I have always advocated that the rule of law should operate as a reference point for the policies and laws we seek to create and relate to the Internet. The rule of law can provide the justifications, can legitimize processes and can, in general, create balanced frameworks of principles and rules. But one thing we need to bear in mind is that the rule of law is a metaphysical ideal that is in constant transition and, to this end, should always be evaluated within a specific context.
The question, therefore, is which rule of law is Secretary Clinton referring to? Is she referring to the traditional notions of intellectual property law, where creativity and innovation are balanced against free speech and fair use? Or, is she referring to the rule of law that is based on the recent attempts by the intellectual property community to create law according to their own needs? So, in reality it is not whether the rule of law is to be upheld; the question is what this rule of law should look like and who should be responsible for transforming it from an abstract notion to a solid and tangible article.
It is an undisputed fact that today's intellectual property laws have been subjected to intolerable levels of lobbying, so much that we lost track of what we are seeking to protect. Intellectual property is an all-inclusive framework of creators, innovators and entrepreneurs at all levels; but, for instance, the current approach does not support any of these strands of individuals at the ‘ground zero’ level – the level that consists of those who are not yet part of the Hollywood clan - but need the Internet to imitate, ‘borrow’ and distribute ideas, advocate and criticise.
To this end, although I welcome references to the rule of law, at the same I feel quite disconcerted. I feel uneasy because we can still refer to the rule of law even if that law is based on arbitrariness, intimidation, corruption and bias or is the by-product of lobbying and intimidation or it justifies the creation of an environment where balance and transparency are not essential components. So, I suggest we are cautious when we refer to the rule of law as it can become meaningless through ideological abuse and over-use. As Professor Judith Shklar has adequately phrased it: “[The rule of law] may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter”.
Senator Patrick Leahy
Chairman, US Senate Judiciary Committee
November 17, 2010 Dear Senator Leahy and Members of the US Senate Judiciary Committee,
We know that you are advocates for freedom of speech around the world, and supporters of a free and open Internet. So groups around the world are writing to you with the deepest of concerns regarding a bill you have introduced, S.3804, Combating Online Infringement and Counterfeits Act
. The undersigned global public interest groups, all of whom are active in the ICANN Generic Names Supporting Organization, urge you to delay passage of the Bill pending consideration of the following international concerns.
We believe that COICA will pose challenges and create problems not only within the United States but also at an international level. There is no doubt that copyright infringement and the sale of counterfeit goods constitute a major challenge on the Internet. The promotion of fake goods, the availability of illegal, and often dangerous, pharmaceutical products and the use of the Internet to infringe copyrighted material place in danger not only users, businesses and intellectual property owners but also undermine the Internet as a social and commercial space. This, however, does not excuse the implementation and enforcement of national legislation that seeks to impose its rules extra-territorially and pave the way for the creation of a dangerous precedent.
We believe that S. 3804 hurts freedom of speech globally, sets a precedent for absence of due process around the world and, last but not least, sets a roadmap for all governments to seize control of speech and limit Internet freedoms, just as we are opening up new Top-Level Domain Names. A. The Impact upon international Registrants and Free Speech
S. 3804 fails to bargain for due process and freedom of speech. On many occasions, the United States’ approaches to freedom of expression and due process have provided guidance to the international community regarding their ability to strike a balance between commercial interests and constitutional rights. This is, in particular, evident within intellectual property laws where free speech and fair use provisions have been ‘internalized’ within copyright and trademark statutes, providing safeguards against unfair and abusive intellectual property claims. For example, copyright’s ‘fair use’ doctrine contains built-in First Amendment accommodations”.
Unfortunately, S. 3804 fails dramatically to address these intrinsic and quintessential free speech concerns. Depending on whether jurisdiction can be sustained, the Bill suggests an indiscriminate takedown or blocking of domain names that facilitate copyright infringement without paying regard to potentially protected content. The Bill does not allow a substantive evaluation of the content of the domain name in an effort to distinguish protected from unprotected speech. This will have a severe impact upon the legitimate rights of users and, more importantly, will ‘upset’ the existing legal balance between free speech and intellectual property rights - a balance that is recognized and supported by judicial opinion and reasoning. B. Imposition of US law globally
Within the context of international law, the only instance that could justify the application of any national law and its imposition on foreign conduct is the jurisdiction to prescribe. As classically defined, jurisdiction to prescribe refers to the manner in which the international community makes “its laws applicable to the activities, relations, or status of persons, or the interests of persons in things […]”.
At the outset, it appears that S. 3804 provisions on domain name takedowns and domain name blocking is in line with the ‘nationality principle’ and the ‘effect principle’ respectively.
However and especially in relation to the ‘effect principle’ the situation is highly controversial. As one expert wrote, “once we move out of the sphere of direct physical consequences, however, to employ the formula of “effects” is to enter upon a very slippery slope; for here the effects within the territory may be no more than an element of alleged consequential damage which may be more or less remote […]. To extent the notion of effects, without qualification, from the simple cases of direct physical injury to cases such as defamation, sedition and the like is to introduce a dangerous ambiguity into the basis of the doctrine. If indeed it were permissible to find objective territorial jurisdiction upon the territoriality of more or less remote repercussions of an act wholly performed in another territory, then there were virtually no limits to a State’s territorial jurisdiction”.
In today’s global Internet economy, the ‘effect principles’ permits almost limitless legislative jurisdiction with S. 3804 being a true manifestation of this. The Bill also sends a dangerous message to the rest of the world as it sets a rather treacherous precedent. Nothing can stop other sovereign nations from proceeding to similar legislation and use the ‘effects principle’ in an effort to either impose their own interests or prevent the imposition of American law within their territory. A scenario like this will create many new legal conflicts that could undermine the value of the Internet as a global medium. C. The Impact of the Bill to the Internet
Last but not least, in its current form this Bill can have a severe impact upon the Internet’s global governance. Given the considerable attempts to moderate the United States’ overall authority over the Domain Name System, S. 3804 reintroduces the debate on the potentially abusive role of the United States Government upon the DNS.
Over the past few years, Internet Governance participants have tried hard to justify the relationship between the US Government and the DNS as one based on issues of practicality rather on abuse. In this context, it has been suggested that the US control over the DNS should be seen by the international community as contributing to the security, stability and evolution of the DNS and not as a way through which the US Government seeks to impose its will on the Internet.
It is important for the US to be seen as protecting the global DNS and not as taking advantage of it to pursue narrow national interests. Unfortunately, S. 3804 suggests the willingness of Congress to exploit the DNS to its advantage, an issue which can have detrimental effects upon the efforts of the international community to promote a global and inclusive Internet.
Signatories: Dr. Konstantinos Komaitis
Chairman-Elect of ICANN's Noncommercial Users Constituency,
University of Strathclyde, UK www.komaitis.org Professor Milton Mueller,
Internet Governance Project and Founding Member of ICANN’s Noncommercial Users Constituency Robin Gross, Esq.
Chairman of ICANN's Noncommercial Users Constituency
IP Justice Professor Andrew A. Adams
Professor of Information Ethics, Meiji University
http'//www.a-cubed.info/ Rafik Dammak ICANN Generic Names Supporting Organization Councillor Tokyo, Japan Kim G. von Arx
www.cognitionllp.com Nicolas Adam
Member of ICANN’s Noncommercial Users Constituency
Canada Robert Bodle
Assistant Professor of Communication Studies, College of Mount St. Joseph, Member of Noncommercial Users Constituency
USAhttp://robertbodle.org/ Brenden Kuerbis
Internet Governance Project and
Executive Committee Member, ICANN's Noncommercial User Constituency Alex Gakuru,
Africa Representative, ICANN's NCUC – Executive Committee
Chairman, ICT Consumers Association of Kenya
Nairobi, Kenya Caroline Isautier
Manager of International Parents network (http://www.internationalparents.net)
Member of ICANN’s Noncommercial Users Constituency,
Aix en Provence, France  Eldred v. Ashcroft, 537 U.S. 186, 219-21 (2003)  Freecycle Network, Inc. V. Oey, 505 F. 3d. 898 (9th Cir.2007); Twin Peaks Prods. Inc. V. Publ’ns Int’l Ltd, 996 F. 2d. 1366 (2nd Cir. 1993)  Restatement (Third) of Foreign Relations Law of the Untied States, 101 cmt. E, 402 (1986)  The Restatement of Foreign Relations Law in the U.S. identifies two potential situations where jurisdiction to prescribe might be apposite – the ‘effect principle’ and the ‘nationality principle’. Under the ‘effect principle’ extraterritorial exercise of US law is allowed if the conduct abroad influences substantially trade in the US. Under the ‘nationality principle’, jurisdiction is permitted when the activities and interests of foreign nationals have an impact upon the activities and interests of US citizens. These two principles are internationally recognised and under international law all countries have them at their disposal.  Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws,  Brit. Y.B. Int’l L. 146, p.159
The amended version of Senate Bill S.3804
, released in response to global criticism on the Bill's effect, continues to pose serious dangers in the freedom of expression on the Internet. The amended version of S. 3804 (as it is also known) sees the removal of the original black listing of infringing domain names. This amendment is certainly welcoming, but the Bill continues to be far from perfect. Two issues are of imminent importance: first, the imposition of US law to the rest of the world through the 'abuse' of the DNS and, second, the threats to freedom of expression, which are yet to be addressed through this Bill.
In a previous post, I mentioned how the Bill (in its original form) will threaten freedom of speech and the problems with US Congress using the in rem jurisdiction - a device that has already manifested its problems within the Anticybersquatting Consumer Protection Act (ACPA). Ideally, I would like to see this Bill getting rejecting; but, we are far from ideal at this stage. The following constitute some proposals/comments that I see relevant and can potentially assist in making this Bill more equitable, fair and in line with due process.
Here is a breakdown under three prongs: scope, due process and remedies. Purpose
: the Bill seeks to takedown, suspend or block those domain names, dedicated to infringing activities.General thoughts
: Senate bill S. 3804 is overly expansive and goes a step beyond other regulatory attempts around the world seeking to address the same issue (counterfeit goods and copyright infringement). The difference between this Bill and other regulatory attempts is both one of degree and substance. S. 3804 attempts, on the one hand, to regulate behaviour extra-territorially and, on the other, fails to take into consideration the ‘internal’ provisions of fair use and free speech/freedom of expression within U.S. copyright and trademark law.
In both France and the United Kingdom, for instance, similar concerns have been addressed through the passage of laws, known as the ‘3 strikes copyright laws’. Despite the fact that both these pieces of legislation have been controversial and have been hastily passed without debate or consultation, still they only address issues of national interests. On the contrary, S. 3804 seeks to regulate online behaviour outside the United States and, by doing so it will be setting a very dangerous precedent to the rest of the world. COICA is taking advantage of the US’s control over the Domain Name System (DNS) and, despite the systematic efforts of the international community over the past few years to the contrary, it clearly demonstrates that the US still claims ownership over the DNS. The DNS belongs to all Internet users; it belongs to the Internet. Issues with the Bill: A. SCOPE
Sec. 2, (a) (2)(A)(i) – it talks about the entire title 17 (Copyright provisions) – this is way too broad, with no explicit mention to the copyright’s provisions on fair use or free speech or freedom of expression. This section needs to eliminated.
What S. 3804 is telling us is that prior to any notice to the registrant and prior to any response, the domain name will be taken down. There is no scope within this section for any political speech or any other form of free speech to proliferate. Ø
According to A & M Records, Inc. vs. Napster, Inc., 239 F.3d 1004, 1013 (Ninth Cir. 2001), the copyright holder must prove that s/he owns the infringed copyright and the accused infringer violated one [emphasis added] of the copyright’s exclusive rights. S. 3804 does not make such a distinction. By taking down or blocking the whole domain name with its full content, COICA will potentially be removing protected speech. There is no provision within section 3804 that considers the possibility that the site might contain speech that falls within the freedom of speech parameters. In essence, S. 3804 re-interprets the boundaries and scope of traditional copyright law as well as eliminating fair use and free speech defenses. Is this, the DMCA on steroids?B. In Rem – 1.
This whole section is far too broad. It is much wider than the in rem
provision within ACPA (in ACPA in rem
is used when all other jurisdictional options have been exhausted).
According to ACPA: (2)(A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if-- (i) the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office, or protected under subsection (a) or (c) of this section; and (ii) the court finds that the owner-- (I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or (II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1) by-- (aa) sending a notice of the alleged violation and intent to proceed under this paragraph to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar; and (bb) publishing notice of the action as the court may direct promptly after filing the action. 2. “District of Columbia”
– why this choice of forum? Within ACPA, situs is clearly defined and certain criteria need to apply: “In an in rem action under this paragraph, a domain name shall be deemed to have its situs in the judicial district in which-- (i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or (ii) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.”
This provision facilitates to the creation of an international tribunal within the United States, allowed to adjudicate the rights of foreign registrants. B. DUE PROCESS 1. “…in which the domain name registrar or domain name registry for at least 1 such domain name is located …”:
this part needs to be removed. It provides for an unprecedented ‘jurisdictional discretion’ allowing the removal of all domain names affiliated with one registrant – and is technological unfeasible. Is our reading here correct: can the in rem jurisdiction over one domain name of one foreign registrant really be extended to all domain names of that registrant? How is a registrar to handle such a court order to domain names over which they have no contractual relation or responsibility?
A registry?. There is no justification for this and it is totally against due process and justice. 2. Section (c) (1) (B) (i and ii)
– the Registrant is not provided with the opportunity of a prompt response. COICA only allows the registrant to react “after the action is filed” which does not serve due process. 3. Section 3 – required actions by AG:
This warrants expansion as it fails to consider the Registrants and the individual users.
More precisely: a.
The Attorney General (AG) shall also publish procedures developed in consultation with the International and National Registrant Community and with the public. b.
The AG shall also provide guidelines to registrants about what safe harbor and protection mechanisms are in place. c.
The AG shall also provide guidance to registrants concerning their fair use, free speech and freedom of expression rights and ways in which they can legitimately, fully and timely respond to the accusations against their domain names, webpages and speech. d.
The AG shall also authorise the creation of entities that seek to support and advise registrants. (A similar concept exists within the European Union for consumers. Consumer protection regional offices exist throughout the countries of the EU). 4. Situs:
Section (2) (d) (2) – Domains for which the Registry or Registrar is not located domestically:
This whole section sounds as if the US is imposing its laws unilaterally around the world and the international registrant community, setting a very bad precedent. The language is so broad that in any given situation, section 2(d)(2)(A)(i) and (ii) will apply. The US is claiming ownership upon all domain name registrations. 5. Publication of Orders
: Section (2)(f) does not provide the Registrant with the opportunity of a response. The Registrant should be allowed to respond prior to publication of the order. REMEDIES 1. Section 2(a)(2)(A)(i) and (ii)
does not include a fair use, free speech provision. A number (iii) should be added along the following lines: (iii) the Attorney General, before issuing the order, shall exempt from consideration the internalised fair use and freedom of speech provisions of copyright and trademark law. 2. Service of Court Order
a. Section 2(e)(2)(B)(i)
- This is a blocking provision. Considering the implications and effects of blocking, this provision opens a Pandora’s box. It paves the way for the possible and arbitrary blocking of other websites and the enforcement of other content restrictions. b. Section (2)(e)(2)(B)(i)
currently reads: “a service provider, as that term is defined in section 512(k)(1) of title 17, United States Code, or any other operator of a nonauthoritative
[emphasis added] domain name system server …”. What does ‘nonauthoritative’ mean? It is technically ambiguous. The definitions of a ‘service provider’ and ‘nonauthoritative domain name system server’ should be clear and unambiguous. 3. Communication with users
: Section (2)(e)(3): It provides wide discretion at the expense of users. Communication to users should be prompt and clear. 4. Immunity
. Section (2)(e)(5)(A) is too broad. Under this section the entities doing the blocking and takedowns are completely immune. This type of absolute immunity can be twisted and abused by ISP, for example, which will proceed in controlling Internet content. 5. Voluntary Actions.
Section (2)(e)(5)(A) gives carte blance
to providers to control determine which content is permissible. 6. Section on Modification or Vacation of Orders
the existing Defense clauses in this section are limited and should be expanded to include fair use, free speech and freedom of speech as exist within copyright and trademark statutes. Appendix A
Discussion on In Rem Jurisdictional Provision
There are 3 types: Ø
true in rem (property rights constitute the subject of the dispute Ø
quasi in rem I (property rights directly relate to a specific individual Ø
quasi in rem II (property rights are related to a specific person, yet the underlying claim is unrelated to the res that justifies jurisdiction.
So, in rem is an already wide provision. COICA is making use of all these types of in rem. 1.
True in Rem: COICA will apply it in cases where the domain names are registered and hosted domestically. 2.
Quasi in rem I: COICA will apply it when the registrant is a US citizen 3.
Quasi in rem II: this is the provision to catch Registrants and speech located outside the US. This is also the most problematic. For quasi in rem II to exist, one needs to prove that some minimum contacts exist (International Shoe
. The existence of minimum contacts and the requirements is not happening in this Bill.
Traditionally, this requirement meant that contacts should be consistent, systematic and continuous
. This sets of requirements is anathema to the new in rem jurisdiction defined in this Bill for domain names. ACPA started the slippery slope, transferring domain names arbitrarily (Cable News Network vs. cnnews.com). Applying the in rem in ACPA has been proven problematic.
The traditional minimum contacts requirement standard cannot apply in the case of domain names. In order for the minimum contacts requirement to make sense in domain names we need to re-evaluate the criteria. For example, we have to determine that the standard is not only minimum contacts but also that these contacts have to be perpetual and substantial and clearly directed to the forum, claiming jurisdiction