Even “domestic” IP covers foreign acts by foreign parties

The factors that led to the cautionary holdings in Bulova, Vanity Fair, and Asahi are clearly implicated by the use of the domain name seizure tactic. In effect, U.S. domain name policy uses a facially valid jurisdictional claim--over "property" located domestically--to achieve an end prohibited by Bulova and international law generally: the extension of domestic intellectual property law to cover foreign acts by foreign parties. Prescriptive jurisdiction for such a policy is doubtful, because it does not take account of conflicting treaty obligations nor foreign law and avoids entirely the question of whether extraterritorial acts are meant to be covered by the intellectual property statutes that are being vindicated. In violation of Asahi's apparent command, the validity of adjudicative jurisdiction is equally dubious because notice to the domain owner is frequently dispensed with entirely in favor of notice to the domain registrar, and the civil forfeiture statutes place no weight on the interest of foreign sovereigns in disputes involving their subjects. Although U.S. courts have so far failed to enforce the limits suggested by Bulova and Asahi, their apparent violation has the potential to significantly restrict the credibility of U.S. judgments abroad, especially as the Internet becomes more internationalized and the cooperation of foreign sovereigns becomes more essential to its regulation.