There are plenty of options for copyright holders to frustrate the operations of pirate sites, but one of the most effective is to attack their domain names.
In recent years, various entertainment industry groups have called on the domain name industry to help out on this front.
As a result, the MPAA signed a landmark agreement with the Donuts registry under which the movie industry group acts as a “trusted notifier” of “pirate” domains. A similar deal was later announced with the Radix registry.
This was later followed by a much more ambitious plan. Last year, the Domain Name Association, which counts prominent registrars and registries among its members, unveiled its Healthy Domains Initiative, a voluntary self-regulation scheme to tackle all kinds of abuse.
According to the initially published outline, it would institute a copyright arbitration policy to deal with pervasive instances of copyright infringement. This would allow copyright holders to request that domain names be taken offline, without going to court.
This plan, also referred to as SCDRP, was listed as a proposal from the Public Internet Registry (PIR). PIR oversees the registrations of .org domains, including ThePirateBay.org, which was a likely candidate for this arbitration process.
According to Idaho Law Professor Annemarie Bridy, who recently published a handbook chapter on developments in copyright-related domain and DNS regulation, the arbitration plan would dwarf that of the MPAA’s trusted notifier agreements.
“If PIR were to implement the SCDRP, the RIAA would almost certainly succeed in having the Pirate Bay quietly shut down without subjecting itself to the expense and publicity associated with a lawsuit against its longtime nemesis,” Bridy writes.
However, more than a year has passed and the proposed arbitration scheme appears to have vanished.
The Domain Name Association’s Healthy Domains Initiative is still alive and taking proactive steps against abuse, but the copyright arbitration proposal has been removed from the earlier document.
So what’s going on here? As it turns out, many prominent players in the domain name industry felt that the copyright arbitration plans went a step too far.
Registries and registrars believe it’s their role to help the public set up domain names and manage DNS entries, but they don’t want to take an active role as copyright enforcers of content they don’t ‘host’.
“It was really strongly pointed out to the working group that the hosting services are not necessarily in the same division or even same company, and that such things are entirely outside of the registration process,” Jothan Frakes, Domain Name Association’s Executive Director, informs TorrentFreak.
“The registry or registrar thus are really not part of that content hosting process, and injecting them into that process or putting registrar or registry in the role (and costs and potential legal exposure) of content policing,” he adds.
That said, under the Healthy Domain Initiative, these companies do take action against domain names with other problematic content. This includes domains pointing to “rogue” pharmacies and child abuse.
Many registrars and registries clearly felt that the copyright arbitration plan went too far though.
The Public Internet Registry (PIR) shares this observation. The organization’s general counsel previously said that they are not happy with The Pirate Bay’s presence on an .org domain, and that it’s a prime candidate to be removed under the right conditions.
However, PIR is not happy with initiatives such as the MPAA’s trusted notifier scheme and after discussions with other stakeholders, it felt that the copyright arbitration plan lacks support as well.
This means that PIR will not implement SCADR, despite repeated calls from rightsholders and governments to engage registrars and registries in potential content regulation.
“Public Interest Registry is an advocate for a free, open, safe and secure internet. To that end, we believe that any effort to mitigate content-related abuses should be tightly circumscribed and keenly focused on fostering these principles and ensuring due process,” PIR informs TorrentFreak.
And so ThePirateBay.org and many other domains are safe, for now.
The decision to remove the arbitration plans obviously comes as a huge disappointment to copyright industry groups such as the MPAA and RIAA. While they can still take action against domain names, they will have to go to court instead.