Now the DNA backpedals on “Copyright UDRP”

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.

Angry reactions to “UDRP for copyright”

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.

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

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.

Go Daddy’s Merdinger named DNA chair

Go Daddy VP of domains Rich Merdinger has been appointed interim chair of the Domain Name Association, replacing Neustar’s Adrian Kinderis.
In a blog post, Merdinger said the DNA will become more “vocal” under its new leadership and outlined three priorities for 2017 — awareness, adoption and access.
He said the DNA will share ways businesses can pursue a strategy of “blending” TLD types in their online activities, promote domains as search engine optimization tools, and make it easier for DNA members to participate.
There will be a new series of DNA Virtual Town Hall meetings to facilliate communication. Merdinger wrote:

Expect to see a more vocal DNA – whether it is at the next virtual town hall or learning about new research on domain name strategies and their business impact. As Interim Chair, I will be working with our leadership team on ways to spotlight how domain names are being used strategically and tactically to support business objectives in 2017 and beyond.

He replaces Kinderis, formerly CEO of AusRegistry/ARI/Bombora, who is now, post-acquisition, VP of corporate development at Neustar.
Kinderis, DNA’s founding chair in April 2013, will remain on the DNA’s board of directors, representing Neustar.
It’s interesting that Merdinger’s appointment to chair is being linked with the DNA becoming more “vocal”.
While Merdinger certainly isn’t a shrinking violet, Kinderis, I’m sure he wouldn’t mind me saying, is one of the bluntest, mouthiest guys in the industry.
That said, GoDaddy has name recognition and has proven to be a bit of a headline magnet over the last decade or so.
It surely has a higher profile among would-be registrants — a big part of the DNA’s audience — than Neustar, which isn’t primarily a domain name company or even necessarily primarily an internet company.
The DNA will continue to operate without an in-house staff, having dumped its second executive director earlier this year in favor of outsourcing to a trade group management company, to cut costs.

The DNA loses second exec director in a year

The Domain Name Association has lost its second executive director in less than a year.
The trade group has let go industry newcomer Roy Arbeit, who was hired just six months ago following the November 2015 departure of Kurt Pritz.
It does not plan to replace Arbeit, according to an email circulated to DNA members by chair Adrian Kinderis on Friday.
Instead, the day-to-day operations will be outsourced to Virtual, a trade association management company that has been working for the DNA for some time, Kinderis wrote.
The executive director was basically the only full-time DNA employee. The group is steered by a board of directors comprising representatives of major registries and registrars.
The decision to lose the position seems to be a cost-cutting measure, designed to allow the DNA to spend more on public relations campaigns promoting TLD acceptance and diversity, according to the email.

New DNA boss named

The Domain Name Association has appointed industry newcomer Roy Arbeit as its new executive director.
Arbeit was most recently managing director of sales and marketing at the American Society of Mechanical Engineers. He’s also worked for the American Arbitration Association, Ernst & Young, and Citibank.
He will take the DNA top job effective March 15.
He’s stepping into an empty office. The last DNA executive director Kurt Pritz, who quit in October after two years in the job.
DNA chair Adrian Kinderis said: “He is a strategic thinker and experienced team builder who will help us to accelerate our mission of making the importance, value, and utility of domain names more widely understood.”

Donuts makes Hollywood content policing deal

Donuts has made a deal with the American movie industry that will make it easier to take down piracy domains.
The Motion Picture Association of America has been given a “Trusted Notifier” status, and the two companies have agreed upon a domain take-down framework.
The agreement targets “large-scale pirate websites”, Donuts said.
It’s the first such deal Donuts has made, executive VP Jon Nevett told DI, but it’s likely to be extended into other industries, possibility including music, pharmaceuticals and child abuse prevention.
“This could be a model for not just content-related issues,” he said.
Nevett did not want to get into much detail about the specifics of the take-down process by discussing the definition of “large scale” or timing, but he did say that the MPAA has an obligation to do manual research into each domain it wants suspending.
After it receives a report from the MPAA, Donuts will reach out to the registrar and registrant to ask for an explanation of the alleged piracy.
A decision to suspend the domain or leave it alone would be made “solely in our discretion”, Nevett said.
Donuts already has this in its acceptable use policy, which reads in part:

Donuts reserves the right, at its sole discretion and at any time and without limitation, to deny, suspend, cancel, redirect, or transfer any registration or transaction, or place any domain name(s) on registry lock, hold, or similar status as it determines necessary for any of the following reasons:
…
domain name use is abusive or violates this AUP, or a third party’s rights or acceptable use policies, including but not limited to the infringement of any copyright or trademark;

While Donuts is the registry for .movie and .theater, the MPAA agreement applies to all of its almost 200 gTLDs.
The announcement comes the day before the Domain Name Association meets to discuss its Healthy Domains Initiative.
Nevett said that DNA members will meet tomorrow with law enforcement, IP owners, and abuse prevention and security folk to seek input on the question “What are tenets of healthy domain ecosystem?”
That input will be discussed at a subsequent DNA meeting, likely to coincide with the ICANN meeting in Marrakech this April.
The eventual goal is to come up with a set of voluntary best practices for registries and registrars.
Nevett stressed that the MPAA deal, and whatever the DNA comes up with, are voluntary agreements made outside the auspices of ICANN’s contracts.
Despite this, the “Trusted Notifier” concept does put me in mind of section 3.18 of the Registrar Accreditation Agreement, where governmental or affiliated entities are given special powers to have dodgy domains investigated and suspended.

Pritz quitz DNA

Domain Name Association boss Kurt Pritz has resigned after two years on the job.
Neustar’s Adrian Kinderis, chair of the domain industry trade group, made the announcement in an email to members yesterday.
No immediate replacement for Pritz has been named, but Kinderis said the DNA’s board wasn’t worried:

Fellow members may have concerns about the current and future management of the DNA and its many activities. Please be advised that the board and I have no serious concerns. The DNA partners with Virtual and Allegravita, two full-service external consultancies that manage all areas of operational excellence and communications. These two organizations have the full trust and support of the board, and the various DNA member committees that I’m proud to see are generating substantial and practical work product on a weekly basis.

Pritz joined the DNA in November 2013, having previously spent years in senior roles, including chief strategy officer, at ICANN.
Under his watch, the DNA has done things like adopting a webinar series for new gTLD registries and launching a site highlighting examples of new gTLD domains advertised “in the wild”, as well as carrying various advocacy work.

What split? TLD webinar series folded into the DNA

A TLD operators’ webinar series initially cast as a community group has been folded in to the Domain Name Association.
The DNA has announced the creation of the DNA University, which promises to pick up where the TLD Operators Webinar left off.
Tony Kirsch of ARI Registry Services has been appointed inaugural “Dean” of the University.
The first webinar will be entitled “Premium Domain Name Planning” and will be held July 28 at 1500 UTC.
Future webinars, which are open to all registries, registrars and new gTLD applicants, will address subjects including IDNs, rights protection, contractual compliance, and many more.
The TLD Operators Webinar was originally called the TLD Operators Community and characterized as a new industry group, which led to gossip about a split within the DNA.
The program was hurriedly re-branded and re-domained to clarify that it was more, as ARI CEO Adrian Kinderis put it, “a one off effort by our consultancy team to get everyone together for a chat.”
Now it’s just a service under the DNA umbrella.

New DNA social media site highlights “in the wild” domains

The Domain Name Association has launched a new web site to show off domains, primarily new gTLD names, that have been spotted “in the wild”.
InTheWild.domains points to a Tumblr blog where members and others can share, for example, photos of billboards or promotional videos that prominently feature new domains.
“Tumblr offers the DNA a very efficient and flexible platform that will help the DNA social media team and you find and post more domains, rather on non-productive management tasks,” the DNA told members.
The site currently has a few dozen posts, such as a WePark.nyc billboard and a VSquared.rocks red carpet video.
Most listed domains are in 2012-round new gTLDs, but there’s a .info, a .us and a .co in there too. I don’t see any .com names.
The submission process appears to be open to everyone, but submissions are moderated by the DNA’s social media people.