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Now the DNA backpedals on “Copyright UDRP”

Kevin Murphy, February 27, 2017, Domain Policy

The Domain Name Association has distanced itself from the Copyright ADRP, a key component of its Healthy Domains Initiative, after controversy.

The anti-piracy measure would have given copyright owners a process to seize or suspend domain names being used for massive-scale piracy, but it appears now to have been indefinitely shelved.

The DNA said late Friday that it has “elected to take additional time to consider the details” of the process, which many of us have been describing as “UDRP for Copyright”.

The statement came a day after .org’s Public Interest Registry announced that it was “pausing” its plan for a Systemic Copyright Infringement Alternative Dispute Resolution Policy modeled on UDRP.

PIR was the primary pen-holder on the DNA’s Copyright ADRP and the only registry to publicly state that it intended to implement it.

It’s my view that the system was largely created as a way to get rid of the thepiratebay.org, an unwelcome presence in the .org zone for years, without PIR having to take unilateral action.

The DNA’s latest statement does not state outright that the Copyright ADRP is off the table, but the organization has deleted references to it on its HDI web page page.

The HDI “healthy practices” recommendations continue to include advice to registries and registrars on handling malware, child abuse material and fake pharmaceuticals sites.

In the statement, the DNA says:

some have characterized [Copyright ADRP] as a needless concession to ill-intentioned corporate interests, represents “shadow regulation” or is a slippery slope toward greater third party control of content on the Internet.

While the ADR of course is none of these, the DNA’s concern is that worries over these seven recommendations have overshadowed the value of the remaining 30. While addressing this and other illegalities is a priority for HDI, we heard and listened to various feedback, and have elected to take additional time to consider the details of the ADR recommendations.

Thus, the DNA will take keen interest in any registrar’s or registry’s design and implementation of a copyright ADR, and will monitor its implementation and efficacy before refining its recommendations further.

The copyright proposal had been opposed by the Electronic Frontier Foundation, the Internet Commerce Association and other members of ICANN’s Non-Contracted Parties House.

In a blog post over the weekend, ICA counsel Phil Corwin wrote that he believed the proposal pretty much dead and the issue of using domains to enforce copyright politically untouchable:

While the PRI and DNA statements both leave open the possibility that they might revive development of the Copyright UDRP at some future time, our understanding is that there are no plans to do so. Further, notwithstanding the last sentence of the DNA’s statement, we believe that it is highly unlikely that any individual registrar or registry would advance such a DRP on its own without the protective endorsement of an umbrella trade association, or a multistakeholder organization like ICANN. Ever since the U.S. Congress abandoned the Stop Online Privacy Act (SOPA) in January 2012 after millions of protesting calls and emails flooded Capitol Hill, it has been clear that copyright enforcement is the third rail of Internet policy.

The Pirate Bay likely to be sunk as .org adopts “UDRP for copyright”

Kevin Murphy, February 8, 2017, Domain Registries

Controversial piracy site The Pirate Bay is likely to be the first victim of a new industry initiative being described as “UDRP for copyright”.

The Domain Name Association today published a set of voluntary “healthy practices” that domain registries can adopt to help keep their TLDs clean of malware, child abuse material, fake pharmacies and mass piracy.

And Public Interest Registry, the company behind .org, tells DI that it hopes to adopt the UDRP-style anti-piracy measure by the end of the first quarter.

This is likely to lead to thepiratebay.org, the domain where The Pirate Bay has resided for some time, getting seized or deleted not longer after.

Under its Healthy Domains Initiative, the DNA is proposing a Copyright Alternative Dispute Resolution Policy that would enable copyright holders to get piracy web sites shut down.

The version of the policy published (pdf) by the DNA today is worryingly light on details. It does not explain exactly what criteria would have to be met before a registrant could lose their domain name.

But PIR general counsel Liz Finberg, the main architect of the policy, said that these details are currently being finalized in coordination with UDRP arbitration firm Forum (formerly the National Arbitration Forum).

The standard, she said, will be “clear and convincing evidence” of “pervasive and systemic copyright infringement”.

It’s designed to capture sites like The Pirate Bay and major torrent sites than do little but link to pirate content, and is not supposed to extend to sites that may inadvertently infringe or can claim “fair use”.

That said, it’s bound to be controversial. If 17 years of UDRP has taught us anything it’s that panelists, often at Forum, can take a liberal interpretation of policies, usually in favor of rights holders.

But Finberg said that because the system is voluntary for registries — it’s NOT an ICANN policy — registries could simply stop using it if it stops working as intended.

Filing a Copyright ADRP complaint will cost roughly about the same as filing a UDRP, typically under $1,500 in fees, she said.

Penalties could include the suspension or transfer of the domain name, but monetary damages would not be available.

Finberg said PIR chose to create the policy because she wasn’t comfortable with the lack of due process for registrants in alternative methods such as Trusted Notifier.

Trusted Notifier, in place at Donuts and Radix, gives the Motion Picture Association of America a special pass to notify registries about blatant piracy and, if the registry agrees, to have the domains suspended.

While stating that .org is a fairly clean namespace, Finberg acknowledged that there is one big exception.

“The Pirate Bay is on a .org, we’re not happy about that,” she said. “If I were to say what’s the one .org that is the prime candidate for being the very first one out of the gate, I would say it’s The Pirate Bay.”

Other registries have yet to publicly state whether they plan to adopt this leg of the DNA HDI recommendations.

Fight as ICANN “backtracks” on piracy policing

Kevin Murphy, July 1, 2016, Domain Policy

ICANN has clarified that it will not terminate new gTLD registries that have piracy web sites in their zones, potentially inflaming an ongoing fight between domain companies and intellectual property interests.

This week’s ICANN 56 policy meeting in Helsinki saw registries and the Intellectual Property Constituency clash over whether an ICANN rule means that registries breach their contract if they don’t suspend piracy domains.

Both sides have different interpretation of the rule, found in the so-called “Public Interest Commitments” or PICs that can be found in Specification 11 of every new gTLD Registry Agreement.

But ICANN chair Steve Crocker, in a letter to the IPC last night, seemed to side strongly with the registries’ interpretation.

Spec 11 states, among other things, that:

Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.

A literal reading of this, and the reading favored by registries, is that all registries have to do to be in compliance is to include the piracy prohibitions in their Registry-Registrar Agreement, essentially passing off responsibility for piracy to registrars (which in turn pass of responsibility to registrants).

Registries believe that the phrase “consistent with applicable law and related procedures” means they only have to suspend a domain name when they receive a court order.

Members of the IPC, on the other hand, say this reading is ridiculous.

“We don’t know what this clause means,” Marc Trachtenberg of the IPC said during a session in Helsinki on Tuesday. “It’s got to mean something. It can’t just mean you have to put a provision into a contract, that’s pointless.”

“To put a provision into a contract that you’re not going to enforce, has no meaning,” he added. “And to have a clause that a registry operator or registrar has to comply with a court order, that’s meaningless also. Clearly a registry operator has to comply with a court order.”

Some IPC members think ICANN has “backtracked” by introducing the PICs concept then failing to enforce it.

IPC members in general believe that registries are supposed to not only require their registrars to ban piracy sites, but also to suspend piracy domains when they’re told about them.

Registries including Donuts have started doing this recently on a voluntary basis with partners such as the Motion Picture Association of America, but believe that ICANN should not be in the business of content policing.

“[Spec 11] doesn’t say what some members of the IPC think it says,” Donuts VP Jon Nevett said during the Helsinki session. “To say we’re in blatant violation of that PIC and that ICANN is not enforcing that PIC is problematic.”

The fight kicked off face-to-face in Helsinki, but it has been happening behind the scenes for several months.

The IPC got mad back in February when Crocker, responding to Governmental Advisory Committee concerns about intellectual property abuse, said the issue “appears to be outside of our mandate” (pdf).

That’s a reference to ICANN’s strengthening resolve that it is not and should not be the internet’s “content police”.

In April (pdf) and June (pdf) letters, IPC president Greg Shatan and the Coalition for Online Accountability’s Steve Metalitz called on Crocker to clarify this statement.

Last night, he did, and the clarification is unlikely to make the IPC happy.

Crocker wrote (pdf):

ICANN will bring enforcement actions against Registries that fail to include the required prohibitions and reservations in its end-user agreements and against Registrars that fail to main the required abuse point of contact…

This does not mean, however, that ICANN is required or qualified to make factual and legal determinations as to whether a Registered Name Holder or website operator is violating applicable laws and governmental regulations, and to assess what would constitute an appropriate remedy in any particular situation.

This seems pretty clear — new gTLD registries are not going to be held accountable for domains used for content piracy.

The debate may not be over however.

During Helsinki there was a smaller, semi-private (recorded but not webcast live) meeting of the some registries, IPC and GAC members, hosted by ICANN board member Bruce Tonkin, which evidently concluded that more discussion is needed to reach a common understanding of just what the hell these PICs mean.

Rape ban results in just one .uk takedown, but piracy suspensions soar

Kevin Murphy, February 19, 2016, Domain Registries

Nominet’s controversial policy of suspending domain names that appear to condone rape resulted in one .uk domain being taken down last year.

That’s according to a summary of take-downs published by Nominet yesterday.

The report (pdf) reveals that 3,889 .uk names were taken down in the 12 months to October 31, 2015.

That’s up on the the 948 domains suspended in the six months to October 31, 2014.

The vast majority — 3,610 — were as a result of complaints from the Police Intellectual Property Crime Unit. In the October 2014 period, that unit was responsible for 839 suspensions.

Unlike these types of suspensions, which deal with the allegedly illegal content of web sites, the “offensive names” ban deals purely with the words in the domain names.

Nominet’s systems automatically flagged 2,407 names as potentially in breach of the policy — most likely because they contained the string “rape” or similar — in the 12 months.

But only one of those was judged, upon human perusal, in breach.

In the previous 12 months period, 11 domains were suspended based on this policy, but nine of those had been registered prior to the implementation of the policy early in 2014.

The policy, which bans domains that “promote or incite serious sexual violence”, was put in place following an independent review by Lord Macdonald.

He was recruited for advice due to government pressure following a couple of lazy anti-porn articles, both based on questionable research by a single anti-porn campaigner, in the right-wing press.

Assuming it takes a Nominet employee five minutes to manually review a .uk domain for breach, it seems the company is paying for 200 person-hours per year, or 25 working days, to take down one or two domain names that probably wouldn’t have caused any actual harm anyway.

Great policy.

Pirates lose privacy rights under new ICANN rules

Kevin Murphy, January 22, 2016, Domain Registrars

People operating piracy web sites would have a harder time keeping their personal information private under new ICANN rules.

ICANN’s GNSO Council last night approved a set of recommendations that lay down the rules of engagement for when trademark and copyright owners try to unmask Whois privacy users.

Among other things, the new rules would make it clear that privacy services are not permitted to reject requests to reveal a domain’s true owner just because the IP-based request relates to the content of a web site rather than just its domain name.

The recommendations also contain safeguards that would allow registrants to retain their privacy if, for example, their safety would be at risk if their identities were revealed.

The 93-page document (pdf) approved unanimously by the Council carries a “Illustrative Disclosure Framework” appendix that lays out the procedures in some depth.

The framework only covers requests from IP owners to proxy/privacy services. The GNSO was unable to come up with a similar framework for dealing with, for example, requests from law enforcement agencies.

It states flatly:

Disclosure [of the registrant’s true Whois details] cannot be refused solely for lack of any of the following: (i) a court order; (ii) a subpoena; (iii) a pending civil action; or (iv) a UDRP or URS proceeding; nor can refusal to disclose be solely based on the fact that the Request is founded on alleged intellectual property infringement in content on a website associated with the domain name.

This fairly explicitly prevents privacy services (which in most cases are registrars) using the “we don’t regulate content” argument to shoot down disclosure requests from IP owners.

Some registrars were not happy about this paragraph in early drafts, yet it remains.

Count that as a win for the IP lobby.

However, the new recommendations spend a lot more time giving IP owners a quite strict set of guidelines for how to file such requests in the first place.

If they persistently spam the registrar with automated disclosure requests, the registrar is free to ignore them. They can even share details of spammy IP owners with other registrars.

The registrar is also free to ignore requests that, for example, don’t give the exact or representative URL of an alleged copyright infringement, or if the requester has not first attempted to contact the registrant via an email relay service, should one be in place.

The registrant also gets a 15-day warning that somebody has requested their private details, during which, if they value their privacy more than their web site, they’re able to relinquish their domain and remain anonymous.

If the registrant instead uses that time to provide a good reason why they’re not infringing the requester’s rights, and the privacy service agrees, the request can also be denied.

The guidelines would make it easier for privacy service operators to understand what their obligations are. By formalizing the request format, it should make it easier to separate legit requests from the spurious requests.

They’re even allowed to charge IP owners a nominal fee to streamline the processing of their requests.

While these recommendations have been approved by the GNSO Council, they need to be approved by the ICANN board before becoming the law of the ‘net.

They also need to pass through an implementation process (conducted by ICANN staff and GNSO members) that turns the recommendations into written procedures and contracts which, due to their complexity, I have a hunch will take some time.

The idea is that the rules will form part of an accreditation program for privacy/proxy services, administered by ICANN.

Registrars would only be able to use P/P services that agree to follow these rules and that have been accredited by ICANN.

It seems to me that the new rules may be quite effective at cracking down on rogue, “bulletproof” registrars that automatically dismiss piracy-based disclosure requests by saying they’re not qualified to adjudicate copyright disputes.

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