Chokepoints : internet intermediaries and the private regulation of counterfeit goods on the internet

Abstract

This dissertation examines non-state regulation on the Internet, specifically the capacity of corporate actors to create private regulatory arrangements and the degree to which those efforts may rely upon the state. It critically traces the interactions and inter-dependencies between corporate actors and the state through the lens of corporate online anti-counterfeiting enforcement efforts. Between 2010 and 2013, small groups of multinational corporations and government officials from the United States, United Kingdom and the European Commission created a global private regulatory regime to control websites selling counterfeit goods. In this regime, for the first time, major U.S.-based Internet firms, like Google and PayPal, adopted so-called "voluntary best practices" agreements that guide their regulation of these websites on behalf of rights holders. This project examines eight of these agreements that pertain to five Internet sectors: advertising, domain name, marketplace, payment, and search services. In this particular case of private regulation, the state plays a strong, even central role. "Voluntary agreements" are a deliberate misnomer as government actors, acting in concert with rights holders, employed varying degrees of coercion to pressure major Internet firms and payment providers to adopt industry-derived best practices. Despite these coercive elements, however, there are common financial and reputational interests between rights holders and Internet firms. More importantly, these agreements serve strategic economic and national security interests, particularly those of the United States. The U.S. government, the principal architect of the regime, has interests in the protection of intellectual property because of its large stable of successful rights holders. In addition, it has national security interests in tapping into the vast troves of personal and commercial data that firms, such as Google and Yahoo, collect from their users. Corporate agreements to regulate the online distribution of counterfeit goods speak to private regulation on the Internet more generally. This dissertation contends that large corporate actors-both rights holders and Internet firms-can act as arbiters on the legality of technologies, services and applications on the Internet. In doing so, they can have significant influence in determining what types of new technologies and services prosper and which fail. Corporate anti-counterfeiting efforts demonstrate not only the considerable regulatory capacity of these Internet firms but also state and corporate interests in working with these firms to set rules and standards that govern Internet services.