- Best Internet Laws
- Effective but Questionable Internet Laws
- Worst Internet Laws
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Effective but Questionable Internet Laws
Two laws are noteworthy for substantially accomplishing their intended goals, even though I can’t classify them as "good" because of their deficient policy rationales.
#2: No Electronic Theft Act (NET Act)
In 1997, Congress changed the basic paradigm for criminal copyright infringement. Previously, the law required that defendants had to infringe for the money. The NET Act expanded the scope of criminal law to cover both commercial and non-commercial infringers.
Specifically, the NET Act targeted warez traders, a group of hobbyist infringers who aggregate and disseminate copyrighted works as trophies—by finding and publicly presenting a hard-to-get copyrighted work, the warez trader demonstrates his/her prowess as a trader and earns recognition from the community. Warez traders generally subscribe to the "information wants to be free" philosophy, so they never exchange copyrighted works for the money, but their trading can have adverse consequences for copyright owners.
There are many reasons why the NET Act is lousy policy, most importantly because criminal sanctions do not deter warez traders. Yet, it has given the Department of Justice (DOJ) an effective tool to nail warez traders, and a couple of hundred warez traders have been busted using the law. Removing warez traders from the Net, one by one, is a crude but ultimately effective method for curtailing warez trading.
#1: Anti-Cybersquatting Consumer Protection Act (ACPA)
The 1990s saw a frenzy of domain name registrations, often involving the registration of domain names containing well-known trademarks by someone other than the trademark owner (a process called cybersquatting). Courts struggled to apply trademark law to this behavior, so trademark owners appealed to Congress for help. Congress initially hoped that the Internet Corporation for Assigned Names and Numbers (ICANN) would promulgate its own anti-cybersquatting administrative regulations (which ultimately became the Uniform Domain-Name Dispute-Resolution Policy [UDRP]). But ICANN took too long, and an impatient Congress enacted the ACPA.
The ACPA targeted cybersquatting, and in that respect the law has worked well. The classic 1990s cybersquatting "land-grab" registrations of [trademarkowner].[tld] have effectively dried up, and the few cases in which a true cybersquatter has defended an ACPA claim in court generally have resulted in resounding victories for the trademark owner.
A silver lining of the ACPA: It contains an immunization of domain name registrars and registries that completely eliminated them as the targets of trademark owners. Prior to ACPA, domain name registrars (especially Network Solutions, the monopoly .com registrar for most of that time) had been sued repeatedly. Now, plaintiffs don’t even think about it.
However, the ACPA isn’t all good news. From a defense perspective, the ACPA has emerged as a tool to attack gripers and other critics. From a trademark owner’s perspective, the ACPA hasn’t curbed domain name parking, domain tasting and other AdSense-fueled sites using trademarks or typographical versions of them. So no one is really happy with the law. Nevertheless, as a point solution to the cybersquatting problem, I think ACPA is fairly characterized as a solid success.