Abstract
Every modern civilized society functions on the concept of nation-state for formation of rules and regulations with the responsibility of maintaining order. The state creates restrictions in public interest and protects the rights of individuals. On the contrary, the general global perspective with regard to outreach of the World Wide Web suggests that there exists a state of nature with no one to rule the kingdom and no rule to govern the subjects. However, this bubble is burst by Natasha Tusikov in her book Chokepoints: Global Private Regulators on the Internet.
With the rapidly increased penetration of the Internet throughout the globe, it became necessary for the state to keep the platform safe, secured, and well within the ambit of law. During 1970–1980, intellectual property (IP) got recognized as a milking cow for revenue generation, and the world witnessed a shift in paradigm of IP jurisprudence, with debates leading to introduction of the World Trade Organization and Trade-Related Aspects of Intellectual Property. This also established the IP holders’ influence and control over the state.
While the book has been divided into seven chapters by the author, it can be said to have been written in three parts, purely based on its content: legislative failures and inception of nonbinding agreements (NBAs), enforcement of NBAs creating chokepoints, and analysis of the situation and suggestions offered by the author.
The author introduces the readers to the failed attempt by the U.S. government in passing legislations for expanding the scope of online regulation and policing, from monitoring criminal activities to curbing violations related to IP infringements, specifically piracy and counterfeiting. The author also mentions the efforts of the UK government and the EU Council, in doing the same in their respective jurisdiction. Upon failure, the government, lobbied by giant unions of IP holders, turned toward the firms which dominate market over the Internet. The author refers to these firms as macrointermediaries/intermediaries and mentions them as leaders in different types of service providers over the Internet, namely, Google, Yahoo, Bing, and so on, as Search and Ads intermediaries; PayPal, Visa, Mastercard, and so on, as payment intermediaries; GoDaddy as domain registration intermediaries; eBay, Taobao, Amazon, and so on, as marketplace intermediaries. The NBAs signed between them with the IP holders dictating the terms from the other side, for establishing the rules of best practices would be followed by these intermediaries, makes them highly relevant in this debate. The extensive control of intermediaries on the access, as well as usage, of their services put them in an advantageous position to create chokepoints for the websites/users involved in these infringements. The author regards this as the birth of private regulators for securing the economic interest of IP holders, as a result of coercive efforts of governments over the intermediaries working beyond the concept of territorial jurisdiction.
Detailed explanation of the working methodology of intermediaries, as per the terms of the NBAs, is covered in the second part of the book. Intermediaries have been divided into three categories, based on the technological control they possess to create chokepoints, namely, revenue chokepoints (affecting the payment portals for sending or receiving money, removal of ads), access chokepoints (exclusion of domain from listing on search, deregistration of domains), and marketplace chokepoints (delisting of counterfeiting goods and pirated products). It is very interesting to read the firsthand information gathered by the author, after extensive research and elaborative interviews, wherein she discusses eight different NBAs from United States, United Kingdom, and European Union. The book discusses the grievance redressal being done through automated programs created by the intermediaries, wherein the common actions taken are notice-and-takedown and withdrawal of services and punitive actions, coupled with monitoring and policing the platforms as preventive measures. The author observes that apart from revenue chokepoints, all of the other abovementioned chokepoints are ineffective, in tackling the situation, due to the fact that these services are provided by such firms, which aren’t signatories to these NBAs.
In the analysis part, the author has criticized this form of regulation by private intermediaries. The author argues that the NBAs have hampered technological advancement, as upgradation is now governed by the goals set out in these NBAs and demands of IP holders. Another criticism pointed out relates to the automated action mechanism adopted by intermediaries, which in order to provide quick result, doesn’t give regard to frivolous and anticompetitive complaints made by IP holders. This destroys the established notion of fairness and due process and makes one rethink for “what would have been a better regulator and protector of IP rights: a well deliberated and accountable legislation or profitability driven handshake deals.” It makes every activist and every corporate who participated in the infamous “Internet Blackout,” to reexamine its actual accomplishment. The author also acknowledges the efforts of different trade owners and government officials from United States, United Kingdom, and European Union, along with hesitant steps from China, for ensuring the protection of IP rights, which is a major source of revenue in the developed nations. The author views the regulatory norms of NBAs, about which people are generally unaware of, as violative of freedom of speech, privacy, and being anticompetitive in nature. The author, while demanding for stronger digital rights, points out the importance of transparency in the enforcement procedure and articulately points out the role of the state in maintaining the same.
While the content of the book seems to be overrepetitive, and readers encounter the same theory or principle, over and over again, the representation of several interesting facts and analogies makes the reading effortless and smooth, while keeping the curiosity alive. Considering the fact that the number of academic work in this specific field is almost negligible, this book carries a heavy burden of introducing readers to this arena, and the author has done a commendable job by keeping the standard of this book up to its expectation.
The biggest goal of IP jurisprudence has always been balancing of private and public interest. This book takes this goal to another level, with the author demanding the same balance on digital platforms as well. The book certainly lays down the ground work for further research in this area, specifically with respect to developing and underdeveloped economies, the biggest users of pirated and counterfeit products. I would recommend this book to everyone who is interested in technology laws, criminal laws, privacy and censorship laws, and of course, IP laws.