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.
Law enforcement and IP owners were dealt a setback last week when the National Arbitration Forum ruled that they cannot block domain transfers unless they have a court order.
The ruling could make it more difficult for registrars to acquiesce to requests from police trying to shut down piracy sites, as they might technically be in breach of their ICANN contracts.
NAF panelist Bruce Meyerson made the call in a Transfer Dispute Resolution Policy ruling after a complaint filed by EasyDNS against Directi (PublicDomainRegistry.com).
You’re probably asking right about now: “The what policy?”
I had to look it up, too.
It’s designed for disputes where one registrar refuses to transfer a domain to another. As part of the IRTP, it’s a binding part of the Registrar Accreditation Agreement.
It seems to have been rarely used in full over the last decade, possibly because the first point of complaint is the registry for the TLD in question, with only appeals going to a professional arbitrator.
Only NAF and the Asian Domain Name Dispute Resolution Centre are approved to handle such cases, and their respective records show that only one TDRP appeal has previously filed, and that was in 2013.
In the latest case, Directi had refused to allow the transfer of three domains to EasyDNS after receiving a suspension request from the Intellectual Property Crime Unit of the City of London Police.
The IPCU had sent suspension requests, targeting music download sites “suspected” of criminal activity, to several registrars.
The three sites — maxalbums.com, emp3world.com, and full-albums.net — are all primarily concerned with hosting links to pirated music while trying to install as much adware as possible on visitors’ PCs.
The registrants of the names had tried to move from India-based Directi to Canada-based EasyDNS, but found the transfers denied by Directi.
EasyDNS, which I think it’s fair to say is becoming something of an activist when it come to this kind of thing, filed the TDRP first with Verisign then appealed its “No Decision” ruling to NAF.
NAF’s Meyerson delivered a blunt, if reluctant-sounding, win to EasyDNS:
Although there are compelling reasons why the request from a recognized law enforcement agency such as the City of London Police should be honored, the Transfer Policy is unambiguous in requiring a court order before a Registrar of Record may deny a request to transfer a domain name… The term “court order” is unambiguous and cannot be interpreted to be the equivalent of suspicion of wrong doing by a policy agency.
To permit a registrar of record to withhold the transfer of a domain based on the suspicion of a law enforcement agency, without the intervention of a judicial body, opens the possibility for abuse by agencies far less reputable than the City of London Police.
That’s a pretty unambiguous statement, as far as ICANN policy is concerned: no court order, no transfer block.
It’s probably not going to stop British cops trying to have domains suspended based on suspicion alone — the Metropolitan Police has a track record of getting Nominet to suspend thousands of .uk domains in this way — but it will give registrars an excuse to decline such requests when they receive them, if they want the hassle.
The National Arbitration Forum has released its price list for Uniform Rapid Suspension complaints, saying that the cheapest case will cost $375.
That’s for cases involving one to 15 domains. Prices increase based on the number of domains in the filing, capped at $500 for cases involving over 100 names.
The prices are within the range that ICANN had asked of its URS providers.
Some potential URS vendors had argued that $500 was too low to administer the cases and pay lawyers to act as panelists, but changed their tune after ICANN opened up an RFP process.
NAF’s price list also includes response fees of $400 to $500, which are refundable to the prevailing party. There are also extra fees for cases involving more than one panelist.
The prices are found in the NAF’s Supplemental Rules for URS, which have not yet been given the okay by ICANN. NAF expects that to come by July 1.
The US-based National Arbitration Forum has been selected by ICANN as the first provider of Uniform Rapid Supsension services.
NAF, which is one half of the longstanding UDRP duopoly, submitted “an outstanding proposal demonstrating how it would meet all requirements presented in the [Request For Information]”, according to ICANN.
URS is meant to complement UDRP, enabling trademark owners to relatively quickly take down infringing domain names in clear-cut cases of cyberquatting.
Unlike UDRP, URS does not allow prevailing trademark owners to take control of the infringing domain, however. The names are merely suspended by the registry until they expire.
NAF already runs a suspension process, the Rapid Evaluation Service, for ICM Registry’s .xxx gTLD.
While exact pricing has not yet been disclosed, ICANN has previously stated that the successful RFI respondent had offered to process URS case for its target of between $300 and $500 per domain.
ICANN expects to approve more URS providers in future, saying that the system will be modeled on UDRP.
URS will only apply to new gTLDs for the time being, though there will inevitably be a push to have it mandated in legacy gTLDs such as .com in future, should it prove successful.
ICANN may have found a vendor willing to provide Uniform Rapid Suspension services for new gTLDs at $500 or less per case, without having to rewrite the policy to do so.
Last month, Olof Nordling, director of services relations at ICANN, gave the GNSO Council a heads-up that the URS policy may have to be tweaked if ICANN were to hit its fee targets.
But last week, following the receipt of several responses to a URS vendor Request For Information, Nordling seems to have retracted the request.
In a message to Council chair Jonathan Robinson, he wrote:
The deadline for responses to the URS RFI has passed and I’m happy to inform you that we have received several responses which we are now evaluating. Moreover, my first impression is that the situation looks quite promising, both in terms of adherence to the URS text and regarding the target fee. This also means that there is less of an urgency than I previously thought to convene a drafting team (and I’m glad to have been proven wrong in that regard!). There may still be details where such a drafting team can provide useful guidance and I will get back to you with further updates on this and other URS matters as we advance with the evaluations.
The target fee for URS has always been $300 to $500 per case, between a fifth and a third of the fee UDRP providers charge.
Following an initial, private consultation with UDRP providers WIPO and the the National Arbitration Forum, ICANN concluded that that it would miss that target unless the URS was simplified.
But some GNSO members called for a formal, open RFP, in order to figure out just how good a price vendors were willing to offer when they were faced with actual competition.
It seems to have worked.
During a session on URS at the Toronto meeting last month, incumbents WIPO and NAF were joined by a new would-be arbitration forum going by the name of Intersponsive.
Represented by IP lawyers Paul McGrady and Brad Bertoglio, the new company claimed it would be able to hit the price target due to software and process efficiencies.
NAF also said it would be able to hit targets for most URS cases, but pointed out that the poorly-described policy would create complex edge cases that would be more expensive to handle.
WIPO, for its part, said a cheaper URS would only be possible if registrants automatically lost the cases if they failed to respond to complaints.
This angered big domainers represented by the Internet Commerce Association and free speech advocates in the GNSO, who feared a simpler URS meant fewer registrant rights.
It’s not yet known which vendors are in with a shot of winning the URS contract, but if ICANN has found a reasonably priced provider, that would be pretty good news for registrants and IP owners.