I’m going to post this and then go hide out in a bunker somewhere.  I’m not even sure I can get through the introductory paragraph before needing to take cover.
(Crawling back out from her hiding space under her desk…..)
You will all remember the Day the Internet Went Black in protest of the twin legislative boogey men, the Stop Online Piracy Act in the House and the Protect IP Act in the Senate.  The acts were secretly negotiated and quickly drafted attempts to curb piracy and counterfeit from foreign sites by prohibiting U.S. companies from advertising on those sites or processing payments to those sites, or from indexing those sites on search engines. We’re coming up on the 5th anniversary of Protest Day. The primary arguments against the bills were that the DNS blocking provisions would “break the internet,” that it was not narrowly tailored to avoid curbing free speech, that it would chill sites for user-generated content, and that it would generally stifle internet innovation.
The short history is that the bills came out, the Internet went berserk, the Internet went black, and the bill died.  Prior to the demise, those of us who moderated panels on the issue that January in places like Nashville (where the content world and tech world actually co-exist) saw our massage, mental therapy, and wine bills go way up. I for one do not wish to relive that month.
And yet, here I am dredging it up.  But sometimes we have to face things outside of our comfort bubble, if only to stay prepared.  And the EU recently reminded us that ISP blocking of sites is alive and well and protecting copyright, and now trademark assets, every day.
I don’t remember a whole lot of discussion about this during the SOPA debate, but in fact infringing sites have been the subject of blocking injunctions in the UK since 2011, and have been recognized as part of the EU InfoSoc Directive since 2014. In the UK, in fact, ISPs are actually responsible for the costs of the blocking. And to my knowledge, no one in Europe is complaining of a broken internet.
This year, in a case the first of its kind, the obligations of ISPs to protect IP assets in Europe expanded from copyright into trademark.  In July of this year, luxury watch maker Cartier won its case against 5 of the UK’s biggest internet service providers to allow Cartier to track changes in web sites selling counterfeit products and continually update the ISP blocks.  The ISPs had argued that the EU Directive regarding blocking for trademark infringement had not been incorporated into UK law and therefore could not apply.  Whether or not a judge could find for ISP blocking for trademark infringement on the basis of UK law alone without EU directives is suddenly a much more interesting question as the UK begins the process of untangling itself from the EU, of course.  But in any case, the judge found that blocking injunctions are available in trademark cases and that again, it’s the ISPs cost to bear.  The cost of filing for an injunction will still keep many trademark owners from taking action, but counterfeit sellers in the UK are certainly on notice now.
I bring this to the attention of Americans because the persistence of the blocking program in Europe (I hesitate to call it “success”) does seem to kick the legs out of the “Break the Internet” argument lobbed at SOPA.
There are certainly reasons to dismiss any idea that legislation like that would show up here again.  The technology industry that led the blackout has a lobby now, enough that unproven theories abound that our most recently ousted Register of Copyrights was a casualty of the anti-copyright efforts on the West Coast.  (A theory I neither support nor dismiss). But at the same time, cybercrime is kind of a hot topic at the moment, and the Congresswoman from the district next to me, Marsha Blackburn, was a co-sponsor of the bill in 2011, is a big advocate for the music industry, and happens to be one of our incoming President’s favorites. So should we start gearing up for another fight?

Tara Aaron

Tara helps clients across multiple industries and countries with licenses and disputes involving trademarks, copyrights, domain names, software, trade secrets, and privacy compliance. She earned her Certified Information Privacy Professional (CIPP) in U.S. Privacy Law in 2018 and in European Data Protection Law in 2019. Her clients include many technology start-ups, software developers, and website designers as well as long-standing institutional clients who come to her for representation in copyright, trademark, licensing and privacy. She also assists with the purchase and sale of intellectual property assets. She has on multiple occasions successfully obtained hijacked domain names for the rightful owners, and regularly negotiates service and technology agreements with the largest telecommunications and software providers in the country.