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In Rem Injunctions:Case of website blockingPhD Candidate at IMPRS-CIMax Planck Institute for IP & Competition lawMartin Husovec Dallas, May 2013

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Derailing injunctions from tort lawCourtesy ofProf. Zittrain

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EU law● Art. 11 of Enforcement & Art. 8(3) of InfoSoc Directive:“Member States shall also ensure that rightholders are in a position toapply for an injunction against intermediaries whose services are used bya third party to infringe an intellectual property right.”● European Commission (Official report on Enforcement Directive):[..] neither Article 11 (third sentence) of the Directive, nor Article 8(3) ofDirective 2001/29 link injunctions with the liability of an intermediary. [..]Injunctions against intermediaries are not intended as a penalty againstthem, but are simply based on the fact that such intermediaries (e.g.Internet service providers) are in certain cases in the best position to stopor to prevent an infringement.

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Remedy landscape

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Entitlement extensionactor non-actorfaultno-faultBlue: US tort law scope (contributory & vicarious liability);● by extending the enforceability of the right, extends also the propertyentitlement

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Injunctions as actio in rem● how can we explain injunctions against non-infringing persons?● tort law centric vs. in rem paradigm● action in rem as a remedy of law of property, and not law of torts● in rem action focus on a factual situation of disharmony between lawand reality, not on a person and his conduct that lead to that situation[rei vindicatio vs. tort of conversion];● with tort-law centric system of injunctions, the right is naked (notenforceable) in certain situations, although de iure, its exclusionarypower is effective towards all (erga omnes).● question for injunctive reliefs: who has factual and legal possibility tostop infringements;● injunction is seen as remedy directly supporting a legal right of a privateindividual, rather than a sanction for wrongful behaviour;

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Canonical examplePractice ofwebsite blocking injunctions● at least 8 European jurisdictions

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How does it work?● civil proceedings of private plaintiffs holding copyrightor trade mark rights against the Internet accessproviders, who as defendants are asked to employcertain technical means to make the access todisputed websites more difficult for its subscribers;● Internet access providers, who are not liable in termsof tort law (legal bases: Art. 8(3), Art. 11);● targeted website operator is usually not part of theproceedings;

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Effective remedy?Three technical methods:● DNS blocking (black-lists a DNS record);● IP address blocking (black-lists an IP address);● Deep Packet Inspection (scans packets and black-lists them);Two ways of formulating injunctions:● Fixed = naming exact domain name or IP address;● Open formulated = identifying the service, but asking to blockany future IP address or domain name;Concerned subject matter:● Copyright (big user demand);● Trade marks (usually smaller user demand);

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(Some) problemsx website operator can not defend himself before the block isgranted and does not have a remedy to challenge such blocksex post [vs. right to a fair trail];x website operators right to engage in commercial activities,his property rights or other rights as a private individual (e.g.free speech), can be interfered with by such a blockade.x plaintiffs can abuse injunctions by preferring to sue forwebsite blocking even if tort law would work for them (e.g.website block instead of a lawsuit against a domain nameholder);x who will defend blocked innovations?x who will review application of open formulated websiteblocks?

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View of industryYahoo!: "[..] disproportionate injunctions are being imposedby the courts on online intermediaries. Such injunctions arevery damaging for online intermediaries, even if they arenot, per se, liable. [..] For online intermediaries, legal liabilityper se is not key, but rather the effect of injunctions on theirbusiness. Therefore, reassurances from rightholders thatinjunctions need not be linked to liability are of no comfort ifthese injunctions cause economic damage and oblige themto take decisions on the legality of content, which woulddamage the fundamental rights of Internet users." (PublicHearing on IPRED)

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Summary● right holders see that there are certain persons in theinfrastructure of the Internet economy who have technical andlegal means and resources to reduce negative externalitiesimpacting upon their rights, but are too far for the tort-law;● thus they demand a private enforcement tool also againstthem; in rem injunctions are such a tool;● if its legitimate as separate independent remedy isquestionable; It certainly creates lot of new problems;● if we now shift to this new paradigm of injunctions, we shouldalso start discussing new positive intellectual propertylimitations not only on the level of the scope of the right, butalso on the level of the scope of its enforcement.

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Thank you for your attention![Blog] www.husovec.eu[Email] martin@husovec.eu