PROTECT ACT 2011: An Internet Governance Perspective

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.