It’s Time for the Internet to Start Acting like an Adult

Robert O. Lindefjeld

©2014. Published in Landslide, Vol. 6, No. 5, May/June 2014, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The year was 1989, and the world was abuzz with a host of game-changing historical events. The Cold War had come to an abrupt end with the dramatic dismantling of the Berlin Wall. The cries of revolution and tear gas shook the foundations of Tiananmen Square. The Energizer Bunny was first introduced to the consuming public, and the first episode of The Simpsons hit the airwaves. The lip-syncing musical group Milli Vanilli seemed to be on top of the world, while the ruptured tanker Exxon Valdez spewed crude oil off the coast of Alaska. Norman Ramsey received the Nobel Prize for Physics for his role in developing the atomic clock, and Colin Powell became our nation’s first African-American Chairman of the Joint Chiefs of Staff. In fact, so many game-changing events happened in 1989 that it seemed, according to Professor Fukuyama, that our human civilization had finally reached “The End of History.”

Yet, the biggest world-changing event of 1989 did not receive even a single news headline or major accolade that year: the birth of the Internet, arguably the most important event of all time.

Now in its 25th year, having celebrated its latest birthday on March 12, 2014, the Internet is recognized by all for the numerous contributions that it has made toward the improved development of the human race, in terms of greatly facilitating such things as: (1) major advances in science and medicine through unprecedented peer collaboration and rapid exchanges of information, (2) unprecedented empowerment of individuals sharing their collective thoughts on political freedoms and societal issues, (3) new techniques to deliver movies, music, and other forms of electronic entertainment directly to the consumer; (4) liberalized communications among individuals through either email or social media (seriously, who remembers sending a business communication via telex?); and (5) of course, eye-popping transformations in the way humans engage in commerce, highlighted by the steady transition away from localized “mom and pop” boutiques to web-enabled online shopping experiences often located in countries thousands of miles away from our nation’s shores. Unfortunately, despite its many beneficial attributes, the Internet has also introduced many new challenges to a broad range of human interaction over the years, the evolution of which are amazingly not dissimilar from the developmental phases that children experience throughout their childhood, from birth to adolescence and, ultimately, to early adulthood.

Of all the major challenges spawned by the Internet over the past quarter century, few have come to the fore more than the issues affecting intellectual property rights, particularly in the areas of trademark and copyright law. Indeed, during this period, we have witnessed major changes to the law affecting the domain name registrations, infringement jurisdiction, digital rights management, and sadly, an explosive rise in online piracy and counterfeiting. And yet, the pervasive scourge of online piracy and counterfeiting remains largely unaddressed to this day.

The Internet, by design, knows no borders. Copyright and trademark laws, in contrast, are inherently “territorial,” meaning that the breadth of protection, ownership, rights, exceptions, and remedies associated with the use of any particular protected work or mark is determined by the domestic laws in the territory in which the work or mark is being used or exploited. Thus, the terms “international copyright law” and “international trademark law” are really misnomers. As such, any harmonization of the copyright and trademark laws are, by design, necessarily dependent on bilateral, regional and/or other multi-lateral instruments or agreements. Therein lies the rub.

Online copyright piracy and counterfeiting are already big business, and the pirates and counterfeiters engaged in this activity are increasingly becoming multi-territorial in nature and are outward looking—meaning that they actively seek users, customers, and revenue from outside the territory within which they operate. However, the resultant harm to the IP rights holders is too frequently felt within the country in which they have spent a great deal of time and money securing legitimate IPR protection. Regrettably, existing civil and criminal remedies in the country where the actual piracy and counterfeiting is occurring is often ineffective. Not surprisingly, the Internet’s worst offenders have creatively adjusted their activities to stay ahead of the law, modifying their business models to avoid liability and, increasingly, locating their operations selectively to avoid jurisdiction.

In addition to these concerns, the enforcement of legitimate domestic copyright and trademark rights abroad is often subject to the ebbs and flows of international relations. Consider, for example, the aftermath of chilled relations between the United States and Russia after the crisis that has recently emerged in connection with the territorial dispute over Ukraine’s Crimean peninsula. In this environment, it seems somewhat unrealistic for, say, a U.S. based IP rights holder to receive enthusiastic support from any Russian court to enforce the order of a U.S. court against any online pirate or counterfeiter located in the former Soviet Union stronghold. And certainly, the documented rampancy of online piracy and counterfeiting from Russian-based websites is not trivial.

Now that the Internet has aged to a point that it touches virtually every individual on the planet, the sheer scale of these problems truly serves to highlight the need for adequate tools that allow IP rights holders to enforce the laws that govern and protect the authors, creators, producers, and owners of copyrighted works and trademarked goods—while also allowing these same copyright and trademark laws to protect legitimate users and consumers. By the same token, however, the basic principles that have permitted the Internet to thrive and expand must also be preserved—open commerce, innovation, free expression, privacy, due process, and transparency are all crucial elements to the continued progress of online commerce and communications, as well as fair and defensible intellectual property laws and enforcement mechanisms. At the same time, enforcement capabilities must allow for speedy, agile, and effective measures against sites that prey on the works and marks of a country’s domestic rights holders from pirates and counterfeiters abroad.

Many proponents of a free and unregulated Internet often have taken a “you’re-not-the-boss-of-me” approach when it comes to the broader regulation of the Internet in the areas of free speech and unfettered individualism. This laissez faire approach encourages the unchecked, adolescent Internet to continue to thumb its nose at domestic intellectual property laws, much like a teenager might resist authority during the tumultuous years of his or her adolescence. But now is the time for the Internet to act its age and to start behaving like an adult (in terms of acceptance of general standards of acceptable conduct).

Congressional actions in the past few years bear witness to the extremely complicated nature of the problem and the divisive nature of the debate on any such proposed solutions. The ABA Section of Intellectual Property Law has accordingly been strategizing ways to address the issues of online piracy and counterfeiting for some time and will be proposing balanced solutions. At this point, Congress does not appear to have a huge appetite for devising workable solution, but two things appear to be certain: (1) the problem is a persistent one and will become increasingly problematic if left untreated; and (2) if the Internet is to thrive over the long term, it must be perceived as doing greater good than harm.

To this end, any efforts aimed at targeting bad actors on the Internet really should be narrowly tailored to avoid retarding the Internet’s future growth, impeding free speech or expression, or stifling legitimate innovations in the structure, functionality, and continued servicing of the Internet. More important, in my view, there seems to be something fundamentally unfair about unduly saddling neutral third parties with the responsibility of policing the rights of IP rights holders—as in the case of, say, imposing unwarranted infringement liability on online service providers or providers of the infrastructure necessary for building, expanding, or improving given networks. That responsibility, it seems to me, can and should remain principally with the IP rights holders, provided that there really is a realistic mechanism permitting IP rights holders to obtain reasonable relief. Any practical solution should simultaneously provide IP rights holders with greater alternatives aimed at thwarting online piracy and counterfeiting by undermining the ill-gotten financial gains of pirates and counterfeiters (beyond those that already exist under current law) without requiring IP rights holders to endlessly chase after anonymous consumers, and anonymous sellers, or to pursue enforcement actions abroad with little hope of recovery. Such solutions might include, for example, supplementing the domestic civil remedies of IP rights holders to obtain injunctions directing, say, financial payment processors to decline payments made to adjudicated pirates or counterfeiters, preventing online advertisers from paying adjudicated pirates or counterfeiters, or requiring online search engines to remove the paid, sponsored links to websites operated by adjudicated pirates or counterfeiters. These new remedies should, understandably, all be accomplished with an eye toward ensuring that adequate due process is afforded to those accused of infringement or might otherwise be adversely affected by any such supplemental enforcement mechanisms.

With all of these principles in mind, the ABA Section of Intellectual Property Law has been working hard over the past few years to propose an effective solution to the problems of online piracy and counterfeiting, one that balances the need to reduce online piracy and counterfeiting against the potential harm that might befall the Internet. It is from this perspective that the Internet can continue to thrive and truly remain a venue without borders and endless possibilities. At the very least, the Section’s upcoming recommendations will hopefully serve to reinvigorate the debate over proposed solutions to the problems presently inhibiting the full potential of the Internet. Now that the Internet has finally reached 20-something adulthood status, the time seems particularly ripe for meaningful change.

Happy Birthday, Internet!

Robert O. Lindefjeld

Robert O. Lindefjeld is chair of the ABA Section of Intellectual Property Law. He is general counsel and chief intellectual property counsel of Nantero Inc.