Opening the Door for Censorship: New Trademark Enforcement Mechanisms Added for Top-Level Domains
By Mitch Stoltz
With so much dissatisfaction over how companies like Facebook and YouTube moderate user speech, you might think that the groups that run the Internet’s infrastructure would want to stay far away from the speech-policing business. Sadly, two groups that control an important piece of the Internet’s infrastructure have decided to jump right in.
The organization that governs the .org top-level domain, known as Public Interest Registry (PIR), and the Internet Corporation for Assigned Names and Numbers (ICANN) are expanding their role as speech regulators through a new agreement, negotiated behind closed doors. And they’re doing it despite the nearly unanimous opposition of nonprofit and civil society groups—the people who use .org domains. EFF is asking ICANN’s board to reconsider.
ICANN makes policies for resolving disputes over domain names, which are enforced through a web of contracts. Best-known is the Uniform Domain Name Dispute Resolution Policy (UDRP), which allows trademark holders to challenge bad-faith use of their trademarks in a domain name (specifically, cybersquatting or trademark infringement). UDRP offers a cheaper, faster alternative to domain name disputes than court. When ICANN began to add many new top-level domains beyond the traditional ones (.com, .net, .org, and a few others), major commercial brands and their trademark attorneys predicted a plague of bad-faith registrations and threatened to hold up creation of these new top-level domains, including much-needed domains in non-Latin scripts such as Chinese, Arabic, and Cyrillic.
In response, the community allowed trademark interests to create more enforcement mechanisms, but solely for these new top-level domains. One of these was Uniform Rapid Suspension (URS), a faster, cheaper version of UDRP. URS is a summary procedure designed for slam-dunk cases of cybersquatting or trademark infringement. it features shorter deadlines for responding to challenges, and its decisionmakers are paid much less than the panelists who decide UDRP cases.
In a move that has drawn lots of criticism, ICANN announced that it is requiring the use of URS in the .org domain, along with other rules that were developed specifically for the newer domains.
URS is a bad fit for .org, the third most-used domain and home to millions of nonprofit organizations (including, of course, eff.org). The .org domain has been around since 1985, long before ICANN was created. And with over ten million names already registered, there’s no reason to expect a “land rush” of people snatching up the names of popular brands and holding them for ransom.
When nonprofit organizations use brand names and other commercial trademarks, it’s often to call out corporations for their misdeeds—a classic First Amendment-protected activity. That means challenges to domain names in .org need more careful, thorough consideration than URS can provide. Adding URS to the .org domain puts nonprofit organizations who strive to hold powerful corporations and governments accountable at risk of losing their domain names, effectively removing those organizations from the Internet until they can register a new name and teach the public how to find it. Losing a domain name means losing search engine placement, breaking every inbound link to the website, and knocking email and other vital services offline.
Beyond URS, the new .org agreement gives Public Interest Registry carte blanche to “implement additional protections of the legal rights of third parties” whenever it chooses to. These aren’t necessarily limited to cases where a court has found a violation of law and orders a domain name suspended. And it could reach beyond disputes over domain names to include challenges to the content of a website, effectively making PIR a censorship bureau.
This form of content regulation has already happened in some TLDs. Donuts and Radix, which operate hundreds of top-level domains, already suspend websites’ domain names based on accusations of copyright infringement from the Motion Picture Association of America, without a court order. Some registries also take down the domain names of pharmacy-related websites based on requests from private groups affiliated with U.S. pharmaceutical companies, again without a court order or due process.
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PIR, the operator of .org, has previously proposed to build its own copyright enforcement system. PIR quickly walked back that proposal after EFF spotlighted it. But PIR’s new agreement with ICANN provides a legal foundation for bringing back that proposal, or other forms of content regulation. And the existence of these contract terms could make it harder for PIR and registrars to say “No” the next time an industry group like MPAA, or a law enforcement agency from anywhere in the world, comes demanding that they act as judge, jury, and executioner of “bad” websites.
Bypassing Users’ Input
The process that led to these changes was problematic, too. The multistakeholder process, which is supposed to account for the views and needs of all groups affected by a policy change, was simply bypassed. ICANN did announce the new .org contract and provided for a period of public comment. But this seems to have been a hollow gesture.
The Non-Commercial Stakeholder Group, a group that represents many hundreds of the organizations that have .org domain names, filed a comment laying out why that domain shouldn’t have the URS system and other “rights protection mechanisms” beyond the UDRP. EFF and the Domain Name Rights Coalition also filed a comment, which was joined by top academics and activists on domain name policy.
An extraordinary and unprecedented 3,250 others filed comments opposing the new .org contract, mainly on the grounds that it removed price caps from .org registrations, potentially allowing Public Interest Registry to increase the fees it charges millions of nonprofit organizations. In contrast, only six commenters, including groups representing trademark holder interests and incumbent registries, filed supportive comments. But ICANN made no meaningful changes in response to these comments from the actual users of .org domain names. The contract they concluded on July 30th was the same as the one they proposed at the start of the public comment period. The ICANN Staff seem to think they can make any policies they choose by contract.
What Comes Next?
EFF has asked the ICANN board to reconsider their new contract, to submit the issue to the ICANN community for a decision, and to remove URS from the .org domain. Public Interest Registry has not yet created any new enforcement mechanisms, nor returned to the copyright enforcement proposal it made and shelved in 2016—but if the new contract stands, it will give them legal cover for doing so. It’s important that Internet users, especially nonprofits, make clear to ICANN, PIR, and PIR’s parent organization, the Internet Society, that nonprofits don’t need new, accelerated trademark enforcement or new forms of content regulation. After all, there’s no reason to think that these organizations will regulate the speech of Internet users any better than Facebook, YouTube, Twitter, and other prominent social networks have done. It would be best if they stay out of that role entirely.
Mitch Stoltz is a Senior Staff Attorney at EFF. Mitch focuses on copyright, trademark, antitrust, telecommunications, and free speech. He has worked for years to fight the use of copyright as a tool for censorship, and to keep the Internet open for creativity and innovation from far and wide. His recent projects include formulating new approaches to antitrust and competition policy in Internet industries, litigation on the copyright status of mandatory safety codes, and cases on Internet TV and radio. Mitch also counsels clients on the use of open licenses for software and media.
Before joining EFF, Mitch was an associate at Constantine Cannon LLP in Washington DC. Long ago, in an Internet far far away, Mitch was a security engineer at Netscape Communications, where he worked to secure Web browsers against malware and coordinated the security research efforts of hackers on three continents. Mitch has a JD from Boston University School of Law and a BA in Public Policy Analysis and Computer Science from Pomona College.
This article was sourced from EFF.org
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