For many years, major U.S. entertainment companies have been trying to gain the power to make websites disappear from the Internet at their say-so. The Internet blacklist bills SOPA and PIPA were part of that strategy, along with the Department of Homeland Security’s project of seizing websites that someone accused of copyright infringement. Hollywood’s quest for more censorship power was on display again today at a House of Representatives committee hearing that was supposed to be discussing reforms at ICANN, the nonprofit organization that oversees the Internet’s domain name system. Amidst a discussion of new top-level domain names (such as “.sucks”), a lawyer representing the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and other groups told the House Judiciary Committee’s Internet subcommittee that ICANN should force the companies that register domain names to suspend domains based on accusations of copyright infringement.
If this sounds familiar, that’s probably because it’s exactly the sort of system that the disastrous SOPA bill would have created—one where entire websites can be forced to go dark, without a day in court, because some material on the site is accused of infringing a copyright. We wrote about this strategy in March, when it appeared in the US Trade Representative’s “Notorious Markets List,” also at Hollywood’s request.
This new strategy to obtain censorship power is based on vague language in the agreements that ICANN made with the companies selling names in new top-level domains like .website, .ninja, and .biz. The agreements say that domain name registrars “shall take reasonable and prompt steps to investigate and respond appropriately to any reports of abuse.” The agreements don’t mention copyright, or require domain registrars to disable a domain without a court order. But that didn’t stop Steve Metalitz, the lawyer for a coalition that includes MPAA and RIAA, from arguing that “reports of abuse that are submitted to registrars by right-holders” should lead to “investigation” and “redress.” Of course, a registrar like Tucows or Namecheap has no control over the contents of websites—they simply register domain names. From a technical standpoint, the only “redress” a registrar can offer to a copyright holder such as a movie studio is to suspend a site’s domain name, making the entire site inaccessible to most visitors.
ICANN broke its own bylaws – and acted in a way “fundamentally inconsistent” with its role as the world’s DNS overlord – while restricting efforts to make itself more accountable to netizens.
That striking judgment comes this month from an independent review team at the International Centre For Dispute Resolution (ICDR). The panel said ICANN’s moves to shield two top officials from questioning in a row over the .africa top-level domain “deprives the accountability and review process set out in the bylaws of any meaning.”
DotConnectAfrica (DCA) wanted to run the .africa registry, but it was blocked from doing so by ICANN’s committee of government representatives. DCA has been tussling with ICANN ever since to get the decision overturned, which is why it wants to quiz the two officials – ICANN board member, Cherine Chalaby, and the former head of its Governmental Advisory Committee (GAC), Heather Dryden.
(This follows a similar ruling this time last year: in May 2014, ICANN was criticized by the independent team for failing to create a standing committee to hear complaints, again in breach of its own bylaws. And just last month, in a separate case, ICANN was slammed by the ICDR for restricting its ability to provide anything approaching an independent review of the domain-name overlord.)
This time, the ICDR panel has clearly had enough: it has demanded Chalaby and Dryden appear before them next month in Washington DC to answer questions. If they fail to appear, the panel has warned that it will “draw the necessary inferences and reach appropriate conclusions regarding that witness’s declaration.”
ICANN – which wants to completely take over the heart of the world’s DNS from the US government – said it will not send the two to the hearing, scheduled for May 22 and 23, and that any evidence would have to be submitted in advance in writing. In doing so, it quoted from its own bylaws – written by ICANN’s lawyers – to back its position.
(Those handy bylaws were unilaterally written by ICANN staff in response to an earlier review hearing that the organization lost. In that case, back in 2010, ICANN’s decision to block .xxx was challenged, and the DNS overlord was defeated after two of its senior officers were quizzed by an independent panel. Best not let that happen again, eh?)
Another strike for the Streisand Effect
Walmart. Just saying the company’s name is usually enough to evoke unbidden brain-sounds of terrifying organ music and images of pitchfork-wielding devil-imps. But, hey, it’s a large business that’s been around for quite a while, so I guess it’s doing alright. It seems to me that somebody might want to call a meeting with the Walmart legal brain trust, because the company’s campaign against a silly and simple parody website isn’t achieving much of anything at all, and is in fact Streisanding the parody site into national views.
This story starts back in 2012, when ICANN saw fit to hold a firesale on domain extensions. Buying them up was all the rage for reasons unfathomable to this author. Still, that was the impetus for how we arrived at Walmart going after a site with a .horse extension.
That explains why, for the mere price of $29, you can now purchase a .horse domain name, if you want to do such a thing. “With .HORSE, there are no hurdles between equine enthusiasts on the Internet,” says United Domains. “Giddy up and register .HORSE today!” It doesn’t seem like too many people have been receptive to this pun-based sales pitch, but a 34-year-old named Jeph Jacques saw the opportunity for what he calls an “art project.”
“I thought, ‘Alright I’m gonna buy this and do something stupid with it and see what happens,” he told me. And readers, he did just that.
This grand art project? Buying up the domain www.walmart.horse, slapping a picture of the front of a Walmart store with a, you guessed it, horse superimposed over the top, and declaring the whole thing a monumental artistic success. Seriously, this is the only thing at the website if you go there.
Monet it might not be, but the image is suddenly competing with the likes of famous artists for attention and views thanks to Walmart freaking the hell out about it. In its infamous wisdom, Walmart and its crackerjack legal team have demanded that the whole shebang be taken down, claiming infringement of trademark. The C&D letter Walmart helpfully sent along suggested that Jacques’ website would confuse customers into thinking that Walmart, who is not in either the business of horses nor in the business of having a sense of humor, might have some affiliation to walmart.horse. Interestingly, the letter targets the domain name, rather than the image on the site itself. I’m not personally aware of any infringement claim on domain name being refuted by the actual extension used, but this would seem to be a ripe candidate for that argument, given that Walmart is not in the horse business.
But this really shouldn’t even get that far, given the whole purpose of the site itself and the artistic nature of the creator.
Jacques argues that his site is “an obvious parody and therefore falls under fair use.” He also told Walmart in his response that he’d be happy to put a disclaimer on his site to let visitors know he is not actually affiliated with the Waltons. And although he doesn’t want to bow to the company just yet, he says he’s already proved his original hypothesis: that corporations spend an absurd amount of time policing their trademarks.
Point proven, I suppose. Meanwhile, a tiny joke site has been Streisanded into the national conversation because Walmart just couldn’t resist.
In recent years copyright holders have demanded stricter anti-piracy measures from ISPs, search engines, advertising networks and payment processors, with varying results.
Continuing this trend various entertainment industry groups are now going after companies that offer domain name services.
The MPAA, for example, has joined the domain name system oversight body ICANN and is pushing for policy changes from the inside.
A few days ago the RIAA added more pressure. The music group sent a letter to ICANN on behalf of several industry players asking for tougher measures against pirate domains.
The RIAA’s senior vice president Victoria Sheckler wants the Internet to be a safe place for all, where music creation and distribution can thrive.
“… we expect all in the internet ecosystem to take responsible measures to deter copyright infringement to help meet this goal,” she notes.
The music groups believe, however, that domain registrars don’t do enough to combat piracy. ICANN’s most recent registrar agreement states that domain names should not be used for copyright infringement, but most registrars fail to take action in response.
Instead, many registrars simply note that it’s not their responsibility to act against pirate sites.
“We […] do not see how it is an appropriate response from a registrar to tell a complainant that it has investigated or responded appropriately to a copyright abuse complaint by stating it does not provide non-registrar related services to the site in question,” Sheckler writes.
In what appears to be a coordinated effort to pressure ICANN and other players in the domain name industry, the U.S. Government also chimed in last week.
According to the U.S. Trade Representative, Canada-based Tucows is reported as “an example of a registrar that fails to take action when notified of its clients’ infringing activity.”
Despite the critique, it’s far from clear that Tucows and other registrars are doing anything wrong. In fact, the Electronic Frontier Foundation
“Domain registrars do not have an obligation to respond to a random third party’s complaints about the behavior of a domain name user. Unless ordered by a court, registrars cannot be compelled to take down a website,” notes Jeremy Malcolm, EFF’s Senior Global Policy Analyst.
“What the entertainment industry groups are doing is exaggerating the obligations that registrars of global top-level domains (gTLDs) have under their agreement with ICANN to investigate reports of illegal activity by domain owners, an expansion of responsibilities that is, to put it mildly, extremely controversial, and not reflected in current laws or norms.”
Law or no law, the entertainment industry groups are not expected to back down. They hope that ICANN will help to convince registrars that pirate sites should be disconnected, whether they like it or not.
The MPAA is one of the ICANN partners shaping future policy for the domain name system. With Hollywood being the driving force behind the group the MPAA is particularly interested in making it harder for pirate sites to register and keep their domains, as recent efforts show.
mpaa-logoThe Internet Corporation for Assigned Names and Numbers (ICANN) is the main oversight body for the Internet’s global domain name system.
Among other things, ICANN develops policies for accredited registrars to prevent abuse and illegal use of domain names.
What not many people know, however, is that the MPAA is actively involved in shaping these policies.
As a member of several ICANN stakeholder groups the lobby outfit is keeping a close eye on the movie industry’s interests. Most of these efforts are directed against pirate sites.
For example, in ICANN’s most recent registrar agreements it’s clearly stated that domain names should not be used for copyright infringement.
As the MPAA’s Alex Deacon explains, these agreements “contain new obligations for ICANN’s contract partners to promptly investigate and respond to use of domain names for illegal and abusive activities, including those related to IP infringement.”
The MPAA hopes that “the community” will take these new obligations seriously and make sure that they are enforced.