Internet anonymity is a leading cause of online chaos and counterfeiting
In early 2011, Google, Wikipedia, Facebook, Reddit, and others launched a coordinated public relations offensive against the two disputed bills known as the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act. (PIPE). Consequently, both bills are now considered essentially dead.
The rhetorical barrage in the media was apocalyptic. According to many of the most trafficked websites on the Internet, SOPA and PIPA threatened nothing less than the total annihilation of free speech on the Internet and amounted to fascist censorship.
Meanwhile, supporters of the bills, including most of the major pharmaceutical companies, book publishers, sports leagues, movie studios and fashion designers, also loudly demanded that SOPA and PIPA be enacted immediately, for fear of irreparable harm caused by Internet pirates operating foreign websites to sell counterfeit goods and offer pirated software, music, and movies to American consumers.
However, the hype and controversy surrounding both bills obscured two fundamental truths.
First, online piracy and counterfeiting by foreign “fake” websites will continue to pose a very serious and growing danger to content creators, brand owners, and consumers alike.
Yet even if the controversial proposed laws had passed in their flawed forms, they likely would have done little to effectively combat online piracy, which is largely fueled by the virtual anonymity fostered by current Internet policy.
Second, while the proposed legislation would have given additional powers to the US Department of Justice to shut down foreign websites primarily engaged in counterfeiting and hacking (and third parties who knowingly aid and abet them) , SOPA and PIPA would not have altered existing laws. significantly the law in that sense. In fact, federal courts already have the legal power to shut down foreign websites that are directly engaged in offering illegal products to American consumers.
In numerous cases in which I have litigated on behalf of major fashion brands and other intellectual property owners, federal courts have consistently held that, as long as the minimum thresholds of personal jurisdiction and due process are met, anonymous owners” John Doe” from the websites can be sued in the US and receive legal process via email. If they ultimately do not come forward to defend themselves and thus default, in addition to losing all of the domain names in question, they may owe millions of dollars in damages to the plaintiffs.
In addition, independent judicial review ensures that each of the malicious websites targeted is engaged in outright counterfeiting and hacking, and that no First Amendment right to free speech is involved.
An alternative policy proposal to address ongoing legitimate concerns about online piracy is a relatively minor change to existing law, which requires verification and disclosure of registrant identification information.
When a person or company registers a new Internet domain name, they must provide administrative and contact information to the private Internet registrar and the official Internet registry. In the case of most malicious websites, the information provided is obviously fictitious, including many cases where the hijacked domain names were registered in the names of “Mickey Mouse” and “Ronald Reagan”.
Furthermore, private Internet registrars can protect even this false information from public disclosure (for a recurring fee to the registrar, of course). Under current Internet Corporation for Assigned Names and Numbers (ICANN) policy, Internet registrars and registries have no significant obligation to verify or publicly disclose the true registrant of a domain name.
As a result, millions of Internet domain names and their related websites remain effectively anonymous and hidden behind a valuable cloak of confidentiality purchased from Internet registrars. However, if forced to provide genuine personal information, even overseas-based registrants could be subject to asset seizures and other serious consequences if found responsible for engaging in online hacking and counterfeiting. In addition, registrars and other Internet providers could reliably discern users involved in intellectual property rights violations and deny them access to their services in the future.
Amending US Internet law and policy to require all Internet registrars and official registries to publicly verify and disclose identifying information about newly created domain name registrants would cast a sanitizing light on the Internet and help largely to curb online piracy and counterfeiting, and without significantly threatening freedom of expression online. We place such stringent requirements on our financial and credit institutions, and we should expect no less from Internet registrars, simply because their transactions are conducted online.