As the fallout from this week’s seizure of file-sharing domains continues, it’s now been revealed that the registrars involved could now be exposing themselves to disciplinary action by IP address and DNS body ICANN. With the police now confirming to TorrentFreak that the action by the registrars was voluntary and based only on a “potential” breach of terms and conditions, it now appears that affected registrars must allow seized domains to be released.
Earlier this week it became apparent that City of London Police had approached certain domain registrars with demands that they should suspend the domains of various torrent and other file-sharing sites. Among them were ExtraTorrent and SumoTorrent, some of the largest indexes on the web today.
There appeared to be no legal basis for the requests, something which outraged Canada-based EasyDNS who refused to comply with a suspension request for meta-search engine TorrentPond.com
To get the lowdown on the latest developments and in order to be absolutely sure that there is no formal legal process underway, TorrentFreak spoke with City of London Police. They told us that in the summer they began a campaign to target websites “that attract visitors by providing unauthorised access to copyrighted content for criminal gain” and that the project is now in new hands.
“In September the project was taken on by the City of London Police’s new Police Intellectual Property Crime Unit [PIPCU], which has been set up to target serious and organized intellectual property crime affecting physical and digital goods, with a specific focus on offences committed online,” a spokesman confirmed.
“The latest stage of Operation Creative, as it is now known, involves contacting registrars whose website domains have been identified as involved in facilitating criminal copyright infringement under UK law and as result are potentially breaching the terms and conditions of the registrars. PIPCU are then requesting the registrars adhere to their terms and conditions and take consideration to suspending the supplied domain.”
So, while the police are stating that the domain registrars are involved in facilitating a crime, there is no formal legal process which establishes either that or whether the torrent and other file-sharing sites involved are actually illegal under UK law.
Given the status of The Pirate Bay and sites like KickassTorrents in the UK it’s certainly possible they are, but none of the sites are based in the UK.
Legal certainty would of course be of some comfort to registrars trying to decide the best course of action in these cases. However, for PDR Ltd, the company we yesterday revealed as suspending the domains of ExtraTorrent and three other MP3 sites, no such reassurance was needed.
So far PDR Ltd have failed to respond to our requests for comment, but according to Mark Jeftovic of EasyDNS, they may now need to think again.
“Any of those registrars that actually complied with the UK requests to bring down the torrent domains *must* allow those domains to simply transfer out, or they themselves will be in violation of the ICANN transfers policy,” Jeftovic told TorrentFreak this morning.
The problem is that the suspended domains are effectively seized and out of the control of their owners. This, Jeftovic notes, leaves the registrar exposed to the wrath of ICANN.
“Since there were no charges against any of the domains and no court orders, it may be at the registrars’ discretion to play ball with these ridiculous demands. However – what they clearly cannot do now, is prevent any of those domain holders from simply transferring out their names to more clueful, less wimpy registrars,” Jeftovic explains.
“If any of those registrars denied the ability to do that, then they would be in clear violation of the ICANN Inter-Registrars Transfer Policy.”
According to that policy, registrars can only take a domain when it was paid for fraudulently or is the subject of a “court order by a court of competent jurisdiction.” As already established, one of those doesn’t exist.
This means that domain owners who refuse a transferral of a domain to a new registrar will open themselves up to further action under ICANN’s Transfer Dispute Resolution Policy, a battle Jeftovic predicts they will lose.
“This is why it is never a good idea to just react to pressure in the face of obnoxious bluster – in the very act of trying to diffuse any perceived culpability you end up opening yourself to real liability,” the EasyDNS CEO concludes.