One of the key aims of the now infamous SOPA legislation that failed to pass several years ago was the takedown of domains being used for infringing purposes. The general consensus outside of the major copyright groups was that this kind of provision should be rejected.
However, within the movie and music industries the spirit of SOPA is still alive, it’s just a question of how its aims can be achieved without giving alternative mechanisms the same name. Yesterday, during a hearing before the House Judiciary Committee’s Internet subcommittee, domains were firmly on the agenda.
One group in attendance was the Coalition for Online Accountability. COA’s aim is to improve online transparency and to encourage “effective enforcement against online infringement of copyrights and trademarks.”
No surprise then that its members consist of the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), Entertainment Software Association (ESA) and the Software and Information Industry Association (SIIA).
COA counsel Steve Metalitz’s testimony called for domain name registrars to deal with complaints effectively.
“In recent months, there have been increasing calls from many quarters for domain name registrars to recognize that, like other intermediaries in the e-commerce environment, they must play their part to help address the plague of online copyright theft that continues to blight the digital marketplace,” Metalitz said.
“Under the 2013 revision of the Registrar Accreditation Agreement (RAA), domain name registrars took on important new obligations to respond to complaints that domain names they sponsor are being used for copyright or trademark infringement, or other illegal activities.”
However, according to Metalitz, registrars are not responding. The COA counsel said that the RAA requires registrars to “investigate and respond appropriately” to abuse reports and make “commercially reasonable efforts” to ensure that registrants don’t use their domain names “directly or indirectly” to infringe third party rights. But there has been little action.
“Well-documented reports of abuse that are submitted to registrars by right-holders, clearly demonstrating pervasive infringement, are summarily rejected, in contravention of the 2013 RAA, which requires that they be investigated,” he said.
As an example, Metalitz highlighted a Romanian-hosted ‘pirate’ music site using the domain Itemvn.com.
“By August of last year, RIAA had notified the site of over 220,000 infringements of its members’ works (and had sent similar notices regarding 26,000 infringements to the site’s hosting providers). At that time, RIAA complained to the domain name registrar (a signatory of the 2013 RAA), which took no action, ostensibly because it does not host the site,” he explained. A complaint to ICANN was also dismissed, twice.
It’s clear from Metalitz’s testimony that the MPAA, RIAA and ESA are seeking an environment in which domains will be suspended or blocked if they can be shown to be engaged in infringement. But the groups’ demands don’t end there.
WHOIS databases carry the details of individuals or companies that have registered domains and registrars are required to ensure that this information is both accurate and up to date. However, since WHOIS searches often reveal information that registrants would rather keep private, so-called proxy registrations (such as Whoisguard) have become increasingly popular.
While acknowledging there is a legitimate need for such registrations (albeit in “limited circumstances”), the entertainment industry groups are not happy that pirate site operators are playing the system to ensure they cannot be traced.
As a result they are aiming for a situation where registrars only deal with proxy services that meet certain standards on issues including accuracy of customer data, relaying of complaints to proxy registrants, plus “ground rules for when the contact points of a proxy registrant will be revealed to a complainant in order to help address a copyright or trademark infringement.”
In other words, anonymity should only be available up to a point.
In a letter to the Committee, the EFF warned against the COA’s proposals.
“As advocates for free speech, privacy, and liberty on the global Internet, we ask the Committee to resist calls to impose new copyright and trademark enforcement responsibilities on ICANN. In particular, the Committee should reject proposals to have ICANN require the suspension of Internet domain names based on accusations of copyright or trademark infringement by a website,” the EFF said.
“This is effectively the same proposal that formed the centerpiece of the Stop Online Piracy Act of 2011 (SOPA), which this Committee set aside after millions of Americans voiced their opposition. Using the global Domain Name System to enforce copyright law remains as problematic in 2015 as it was in 2011.”