ICANN: We Won’t Pass Judgment on Pirate Sites

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Following more pressure from rightsholders, domain name oversight body ICANN has again made it clear that it will not act as judge and jury in copyright disputes. In a letter to the president of the Intellectual Property Constituency, ICANN chief Stephen Crocker says that ICANN is neither "required or qualified" to pass judgment in such cases.

There are plenty of options for copyright holders seeking to hinder the progress of pirate sites but one of the most effective is attacking domains.

The strategy has been employed most famously against The Pirate Bay and over the past couple of years the site has lost most of the domains it deployed to stay online.

At the very top of the domain name ‘tree’ is the Internet Corporation for Assigned Names and Numbers (ICANN). This non-profit body is responsible for the smooth-running of the Internet’s Doman Name System. However, if copyright holders had their way, ICANN would also act as the Internet’s piracy police by forcing registrars to prevent illegal use of domain names.

Last year, ICANN told TorrentFreak that it had no role to play in “policing content” but of course, copyright holders continue to pile on the pressure.

The latest efforts come from the Intellectual Property Constituency (IPC) and the Coalition for Online Accountability (COA), which count the major studios and record labels among their members.

Both have concerns over the “Public Interest Commitments” (PICs) present in new gTLD registry agreements. Specification 11 states that registry operators must include a clause in their registry/registrar agreements which prohibits domain name holders from engaging in various kinds of abuse, from malware and phishing through to copyright and trademark abuse.

This contractual wording allows registries to lay down acceptable use rules with registrars, who in turn do the same with domain owners. However, IPC believes that it is the job of the registries, registrars and ultimately ICANN to enforce these terms and conditions and suspend pirate domains.

In April, IPC chief Greg Shatan wrote to ICANN chair Dr. Stephen Crocker (pdf). He expressed concern at earlier ICANN comments which indicated that the group considers copyright infringement, counterfeiting, and other fraudulent practices to be “outside its mandate”.

That was followed by a June 17, 2016 follow-up letter to ICANN from COA (pdf) expressing similar concerns.

This week, ICANN’s Dr. Crocker responded (pdf) to the April letter from IPC, confirming that his group will “bring enforcement actions” against registries and registrars that fail to include abuse warnings in their end-user agreements.

However, ICANN also made it crystal clear that it won’t be getting directly involved in disputes involving allegedly infringing domains.

“This does not mean, however, that ICANN is required or qualified to make factual and legal determinations as to whether a Registered Name Holder or a website operator is violating applicable laws and governmental regulations, and to assess what would constitute an appropriate remedy for such activities in any particular situation,” Dr. Croker told IPC.

Noting that both registries and registrars have expressed difficulty in assessing alleged violations of the law, ICANN invites those with a grievance against allegedly infringing sites to deal with matters themselves. One possibility might be through voluntary agreements such as those the MPAA struck with Donuts and Radix.

“While these initiatives are outside of ICANN’s limited remit, we are hopeful that these voluntary efforts will produce usable tools and mechanisms for use by Registries and Registrars,” Dr. Croker said.

Finally, ICANN notes that there is nothing stopping “harmed parties” from taking action against registries, registrars or domain owners “through administrative, regulatory or judicial bodies to seek fines, damages, injunctive relief or other remedies available at law.”

In other words, if copyright holders want something done about their disputes, there are several options available already. Just don’t expect ICANN to become judge, jury, and executioner.


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