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”. 

A significant independent report emerged recently in the UK that can certainly be used as a signal of how intellectual property protection is being construed in the 21st century – through lobbying and persuasion initiated by intellectual property rights holders.

Offline but mainly online, intellectual property is certainly going through a strange wave of change. Whereas intellectual property rights existed as tools of communication between producers and consumers, on the Internet they appear to be weapons against consumers. Copyrights and trademarks have become exclusive, untouchable monopolies that now prevent us from exercising our free speech; fair use is blurred with tarnishment and, more worryingly, law is now driven by unsubstantiated economic rationalizations that serve specific intellectual property interest. And, I say specific because most of these rationales are based on a dozen (if not less) rights holders who seek to implement and enforce protections that see their rights secured even at the expense of their peers – small and medium-sized rights holders, innovators and entrepreneurs.

The report, entitled “Digital Opportunity: A Review of Intellectual Property and Growth” – commonly knows as the Hargreaves report – tells the horror story of how lobbying exercised by intellectual property owners has the capacity to direct governments, their ministers and departments. Three quotes encapsulate the essence of the report:

"We urge Government to ensure that in future, policy on Intellectual Property issues is constructed on the basis of evidence, rather than weight of lobbying."

"On copyright issues, lobbying on behalf of rights owners has been more persuasive to Ministers than economic impact assessments."

"Much of the data needed to develop empirical evidence on copyright and designs is privately held. It enters the public domain chiefly in the form of 'evidence' supporting the arguments of lobbyists ('lobbynomics') rather than as independently verified research conclusions."

The report, despite its limitation to the UK intellectual property regime, addresses an issue that represents that current status of intellectual property: trademark and copyright laws are subject to lobbying to the extent that evidence becomes redundant. Take, for example, the ICANN context and the great push towards stronger forms of intellectual property protection. Here we saw the trademark constituency lobbying to their governments and achieving to upset a process that is meant to create jobs, encourage innovation and assist competition. The creation of the new gTLDs became contingent upon trademark rights, discussions about protection and debates about the extent of it. Economics, inclusiveness and societal aspects received none or little attention, even though they actually constitute the most important aspects for a successful Internet.

But, here is the question that no one seems to be able to answer. We all expect (and at some level even understand) where the greed of intellectual property owners is coming from – but, what is it exactly that makes governments willing to contravene traditional understandings of law and to jeopardize the traditional fractions of law making? What is the bargaining chip that the trademark community held upon the US and the UK governments that made them so eagerly support trademark owners in the new gTLD process?

The simple answer appears to be lobbying – a strong amount of political and economic pressure that finds governments willing to risk justice. This lobbying is one-layered: it reaches the top directly and positions itself as the master pulling the strings. It is control – control over the information, control over the ideas and control over the consumers (users).

So, the report is very accurate when it requests evidence, because lack of evidence leads to lack of process.

A brand new piece of Internet legislation has emerged recently and seeks to address – what else – the protection of intellectual property rights. The ‘Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011’ – or more accurately ‘The PROTECT Act of 2011’ is the latest legislative attempt to combat illegal Internet activity related to intellectual property and marks a new step in the United States to ensure the elimination of any activity that facilitates trademark and copyright infringement and the sale and distribution of counterfeit goods and rogue pharmacies.

The PROTECT Act should certainly be considered the legislative extension of COICA. Principally, the Act follows the same logic of the Combating Online Infringement and Counterfeits Act (COICA) but extends its rational basis by targeting domain names and registrants located outside the United States. In so doing, the PROTECT Act uses the procedural devices of in personam and in rem jurisdiction, found in both the Anticybersquatting Consumer Protection Act (ACPA) and in COICA.

The proposal for this Act should not come as a surprise and follows the pattern of creating stronger forms of protection for intellectual property holders. It is a great addition to the attempts by the United States government to create an impenetrable shield around intellectual property owners and to build a multi-layered model of security for the various types of intellectual property. The Act is based on rationalizations emanating from a high degree of legal relativism concerning the boundaries and scope of intellectual property rights and, although the threats that it seeks to address are real and tangible, the lack of robust provisions for the protection of free speech and due process will dilute further our understanding in the Internet’s law making process.

The mere fact that in the space of a year the United States government has proceeded to such expansive legislation can only mean two things: first, since the United States government appears to be so prone to the demands of intellectual property owners, the democratic deficit in the shaping of Internet law grows bigger; and, second, intellectual property law changes drastically and through the interpretations of small, but very powerful, brand owners – a small fraction of rights holders within the intellectual property pool.

This exact pattern has been seen in the context of ICANN’s intellectual property debate. The alliance between rights’ holders and governments and the raising role of the governments in Internet Governance has placed obstacles and has disturbed a lengthy and consuming multistakeholder process and has remanded the Internet community to intellectual property wishes.

Much of the legal basis of the PROTECT Act is based on ambiguous terms whilst its procedural design continues to challenge due process and justice (a good analysis is provided by TechDirt). So, in effect, this Act continues to feed to the emerging hostile environment in the DNS and provides more means for capture of the whole domain name system by certain, non-representative intellectual property interests.

New entrants, entrepreneurs and innovators are expected to suffer from yet another attempt by America’s brand owners to expand intellectual property on the Internet.

In a space of two days, two ICANN-related documents made their appearance: GAC’s response to the ICANN Board’s questions in relation to the scorecard and the new gTLD Applicant Guidebook responding to the GAC’s document. The issue of Rights Protection Mechanisms was apparently so significant that the GAC submitted its clarifications in a separate document from all other issues.

In relation to the RPMs, the latest version of the Guidebook seeks to strike an unsuccessful compromise in some issues and provides some significant changes to the previous version. However, for me two things stand out more than the others and I don’t suggest that the other issues are not of some concern: inclusion of all types of IP rights in the Trademark Clearinghouse and the ‘loser pays’ model of the Uniform Rapid Suspension System.

Inclusion of all types of intellectual property in the Trademark Clearinghouse!

The GAC’s responses in relation to the Clearinghouse provide some great insight regarding the vision the trademark holders in association with the various governments – most certainly those that have already indicated their wish for strict forms of IP protection – have for such a mechanism.

In particular, the GAC provided some clarification regarding its proposal for the inclusion of all types of intellectual property rights within the Clearinghouse. According to the answers submitted to the Board, the GAC explains that such an inclusion “would obviate the necessity to develop separate mechanisms for these types of intellectual property”. Exactly when did we discuss and further decide that copyrights and patents would require a similar mechanism? Where did ICANN acquire the legitimacy to authorize the creation of a mechanism for types of intellectual property other than trademarks? Well, we all know that ICANN does not have the legitimacy to even suggest policy for other types of IP rights (personally, I even contest its legitimacy to create policy for trademarks) and in any discussions we had about potential inclusion of other IP rights in the Clearinghouse even the trademark community failed to sell such a proposal. Simply, there are no valid arguments that would justify ICANN opening up the Clearinghouse to any forms of IP that can be valid or legitimate.

So, this begs the question: why does the GAC insist on it? I can think of one answer: by including all types of IP rights in the Clearinghouse, the IP community will have the opportunity to use the Clearinghouse for all kinds of purposes, e.g. for blacklisting domain names and registrants. This is not a Hollywood science fiction scenario (and, if it is, I certainly claim copyright before I get bullied into surrendering it). Both in the US (COICA) and UK (Policy dealing with domain names used in criminal activity), Congress and NOMINET respectively, are exploring ways concerning the take down of domain names that facilitate the infringement of copyright and the promotion/sale of rogue pharmaceuticals and counterfeit goods. We all know and have read the arguments with this kind of regulation – free speech, human rights and fair use are all at stake. We also know that certain governments do not pay attention to these concerns and continue to pretend that the only real victim here is the IP community. But, whereas such regulatory initiatives were limited to certain jurisdictions and national sovereignties, now they might become international policy. My point is this: if all types of IP rights were to be included, what would stop the Clearinghouse from using its database in a way far and beyond its original scope? What would prevent the Clearinghouse to start a separate ‘blacklist’ that lists those domain names that legislation like COICA addresses? How can we ensure that the database that will be created under COICA will not be fed into the Clearinghouse?

In all this, ICANN does not appear to take the GAC’s considerations on board, but does not appear to either categorically reject them. ICANN chooses to be vague on this issue. In section 3.2.4, ICANN’s final version of the Clearinghouse states: “The proposed standards for inclusion in the Clearinghouse are: other marks that constitute intellectual property”, which might simply be addressing what GAC refers to as ‘local rights’, although, even in this case, local rights are subject to cultural relativism and are highly contested because of their highly national nature; and, then in section 3.6 “Data supporting entry into the Clearinghouse of marks that constitute intellectual property of types other than those set forth in sections 3.2.1-3.2.3 above…”, which sort of gives the Clearinghouse carte blanche into accepting other forms of IP rights; and, finally, the way the term ‘ancillary services’ is used in the final version of the Guidebook is also alarming. The original vision of ‘ancillary services’ was to put to rest the debate as to whether common law marks should be included in the Clearinghouse; and, because the community could not decide, the idea was to allow the inclusion of common law marks through an ‘ancillary services’ mechanism. Now, ancillary services are divorced from their association with what types of trademarks should be included and could be interpreted as allowing the Clearinghouse to provide services – classed as ‘ancillary - for other types of intellectual property.

This provision in the Clearinghouse is vague and opaque – and we all know vague policies can mean one thing: wide, discretionary and potentially bias interpretations. At least, this is the case with ICANN’s policies and I hope I get to be wrong.

The ‘Loser Pay’s model in the Uniform Rapid Suspension System (URS)

In light of news hitting the Internet that trademark bullying is not only a rumor but a current practice exercised by big and powerful trademark owners, ICANN has submitted in its recent version of the URS a provision for a ‘loser pays’ all model to domain name disputes. According to the provision: “A limited ‘loser pays’ model has been adopted for the URS. Complaints listing twenty-six (26) or more disputed domain names will be subject to an Response Fee which will be refundable to the prevailing party. Under no circumstances shall the Response Fee exceed the fee charged to the Complainant”.

Although the reality is indeed that if someone registers this amount of domain names corresponding to a certain mark, that someone is most probably a cybersquatter, ICANN does not explicitly state whether these 26 domain names should come from the same individual. ICANN only states that the Complaint should list 26 or more domain names, but it does not clarify whether the complaint should be against the same respondent. So, again here, this provision can be read as allowing the Complainant to bring one complaint for several domain names which concern the same mark but are registered by different registrants. Can this be the case? There is nothing to suggest otherwise and, if the discretion panels normally exercise in such policies is indicative, nothing stops the URS from being expanded to such a procedural allowance.

But, the ‘loser pays’ model, even if this limited, creates a much bigger problem. It feeds into trademark intimidation and bullying, sort of legitimizing it if you wish. The fact is that, so far, trademark bullying occurred through the fear of court litigation and its associated costs. The message to registrants was clear: we will sue you if you don’t comply and, if we do, you end up engaging and paying a lot of money, which we can afford and you can’t. So, its better to surrender your domain name now that you still have the time. All this was happening at a national level. Now, with this provision, the same practice will also happen at an international level with the blessings of ICANN.

Imagine, for instance, someone who has registered 26 variations of a trademark for free speech purposes. Will that someone be subject to a URS and, more importantly, to a potential ‘loser pays’ model?

This provision will certainly disincentivize legitimate registrants from responding, encouraging further the existing culture of defaults and creating an unbalanced and biased system. Needless to say that the URS is not equipped for such a provision. The URS lacks the checks and balances that exist in traditional adjudication as it promotes speed. You cannot have a system that wishes to award such costs and not have some checks that ensure this takes place according to due process. Systems, like the UDRP and this one, are prone to bias and abuse as they are conceived to protect certain rights – so why feed into this bias?

So, ICANN has entered again a very dangerous territory. The compromise solution that ICANN provided (remember that the GAC originally did not want to put a cap in the ‘loser pays’ model) is as problematic. The criterion that ICANN uses is not clear and the provision is certainly open to the widest interpretations possible. I hope I am mistaken here, but this system can easily backfire and it will certainly allow many mark holders to use also the URS as a tool for intimidation and bullying.