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Angry reactions to “UDRP for copyright”

Kevin Murphy, February 10, 2017, 13:23:15 (UTC), Domain Policy

The Electronic Frontier Foundation and Internet Commerce Association are among those expressing initial concern about the introduction of a new “UDRP for copyright” mechanism by the Domain Name Association.
The EFF said the DNA’s new proposals want registries to become “private arbiters of online speech”, while the ICA expressed concern that the proposals could circumvent the usual ICANN policy-making process.
As we reported earlier in the week, the DNA has set out a set of four “healthy practices” (the term “best practices” was deliberately avoided, I’m told) for registries and registrars, under the banner of its Healthy Domains Initiative.
The first three sets of recommendations cover malware, child abuse material and fake pharmacies and are relatively non-controversial.
However, the surprising fourth proposal seeks to give copyright holders a means to suspend or seize control of domain names where they have “clear and convincing evidence” of “pervasive and systemic copyright infringement”.
While the details have yet to be finalized, it appears to be targeted at sites such as The Pirate Bay, which are used for pretty much nothing but copyright infringement.
“This is a terrible proposal,” the EFF’s Jeremy Malcolm and Mitch Stoltz wrote yesterday:

The content that happens to be posted within [a] website or service has nothing to do with the domain name registrar, and frankly, is none of its business. If a website is hosting unlawful content, then it is the website host, not the domain registrar, who needs to take responsibility for that

They added:

it seems too likely that any voluntary, private dispute resolution system paid for by the complaining parties will be captured by copyright holders and become a privatized version of the failed Internet censorship bills SOPA and PIPA

Those are references to two proposed US laws, the Stop Online Piracy Act and Protect IP Act, that attracted lots of criticism and never saw the light of day.
The ICA, in a separate post on its own site, expressed concerns that private initiatives such as the HDI could give trademark holders another way to route around ICANN policies they do not like.
Noting that trademark protection mechanisms are already under review in a ICANN working group, ICA counsel Phil Corwin wrote:

What if the final consensus decision of that WG is that the URS remedy should remain domain suspension and not transfer, or that the UDRP standard of “bad faith registration and use” should remain as is? Are TM owners then free to develop their own “best practices” that include domain transfer via URS, or a bad faith registration or use standard? What’s the point of going through a multi-year exercise if those dissatisfied with the result can seek stiffer private policies? Just how many bites at the apple should trademark holders get

Both ICA and EFF expressed concern that the new DNA proposals seemed to have been developed without the broad input of members.
Stoltz and Malcolm wrote:

In any purported effort to develop a set of community-based principles, a failure to proactively reach out to affected stakeholders, especially if they have already expressed interest, exposes the effort as a sham.

Corwin wrote:

ICA had no advance knowledge of the details of HDI and no opportunity to provide substantive input. So our fingerprints are nowhere on it.

The Copyright ADRP proposal appears to be the brainchild of Public Interest Registry, the .org registry.
PIR general counsel Liz Finberg told DI earlier this week that PIR is working with arbitration provider Forum to finalize the rules of the process and hopes to implement it in .org before the end of the first quarter.
No other registry has publicly stated similar plans to my knowledge.
The HDI recommendations are completely voluntary and registries/ars are free to adopt them wholly, partially or not at all. They are not ICANN policies.

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Comments (6)

  1. John says:

    What a naked attempt to enable something evil under a pretext.

  2. Kurt Pritz says:

    I applaud the DNA efforts here and Mason Cole’s leadership in publishing them.
    First, just the fact that registries are having the discussion about a self-monitoring effort will work toward setting trademark and copyright owners minds’ at ease. It is this sort of discourse that might avoid the proposal of another SOPA. Mason’s article in CircleID helped make that effort more public and easier for IP owners to recognize.
    Also, each of these four efforts is about content, not just the copyright initiative. No one will squabble about efforts to take down child-porn and fake pharmacy sites. So the discussion is not about content regulation (yes or no) the discussion is about the degree of content regulation. I understand the ICA concern that this might become a slippery slope but I don’t see how we can argue against providing a mechanism for registries to address the sorts of concerns raised by Pirate Bay.
    It is this sort of initiative that seeks to convince IP owners that they can work with Domain Name Industry participants to curb abuse rather than seek onerous legislation.
    In developing these tools, it is in the registries’ interests to find the ground between satisfying IP owners and not alienating registrants with concerns about unexpected take downs.

  3. Philip Corwin says:

    @Kurt–Thanks for your recognition of ICA’s concerns. As any registry’s TOS generally gives it authority to act against a domain used for unlawful purposes, it is unclear why that is insufficient for any registry to act against a domain being used to pervasively disseminate infringing content. And that registry authority is in addition to statutory avenues available to copyright holders.
    Our main concern with the Copyright ADRP proposal is that it was developed with insufficient input from domain registrants as well as parties dedicated to preserving Internet free speech. I hope that PIR will seek that input before any final decisions, much less implementation. As a registry controlled by the Internet Society any action taken by PIR has the implicit blessing of ISOC, so it is especially important that they seek further input from all concerned Netizens.

  4. Volker Greimann says:

    The domain name industry should stay away from regulating content. A healthy domain is one that resolves, is paid up and is set up correctly, with accurate data. It is not subject to any DNS attacks and its nameservers are healthy too.
    Content is healthy hosting! So where is the healthy hosting initiative and why is the domain name industry expected to deal with something that essentially is none of its business?

  5. Mitch Stoltz says:

    @Kurt- After the protests of 2012, the US Congress and the legislatures of most developed countries wouldn’t touch “another SOPA” with a ten-foot gavel. That’s precisely why proponents of using domain name suspension to enforce copyright and para-copyright moved to forums like ICANN and then to private “voluntary” negotiations with government encouragement. Avoiding legislation is a false justification because that legislation is politically toxic.
    As for the slippery slope: if you believe domain name companies must address “concerns raised by the Pirate Bay” despite having no legal duty to do that, then what should those companies do when the Russian government asks them to suspend domain names for sites that discuss LGBT issues, or other governments ask them to suspend domains that point to criticism of Islam? Those are laws, too.

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