In recent years various entertainment industry groups have switched their efforts away from legislation, towards voluntary cooperation with various stakeholders.
This has resulted in several agreements with Internet providers, advertising agencies and payment processors, which are all designed to help prevent piracy.
In 2016, this strategy was expanded to cover key players in the domain name industry. Last February, the MPAA and the Donuts registry signed a landmark agreement under which the movie industry group acts as a “trusted notifier” of “pirate” domains. A similar deal was later announced with Radix.
Traditionally, it has been very hard for rightsholders to get domain names suspended without a court order but through voluntary agreements, this process is simplified. Without a court order, the registries in question are now able to take pirate sites offline, if the evidence is sufficient.
Such agreements are praised by Hollywood and even have ICANN’s blessing. However, there are also concerns. In a recent article, University of Idaho Law Professor Annemarie Bridy expresses concern over these developments.
It is the first voluntary deal that touches on the Internet’s core technical functions, assigning private copyright enforcers as some sort of online police. The current agreements are fairly limited and Professor Bridy warns that it could be just the beginning.
“For now, non-judicial notice and takedown practices in the DNS are limited; however, demands on intermediaries for stronger online content regulation across the board are only growing,” Bridy writes.
With a lack of transparency and due process, the MPAA’s programs could easily expand to a broader range of controversial content such as fake news, hate speech, and terrorist propaganda, she warns.
“Lack of transparency and due process in such programs will make them inherently vulnerable to inconsistency, mistake, and abuse and could transform the DNS into a potent tool for suppressing disfavored speech.”
In copyright cases there are worrying consequences as well. Recent history has shown that over-blocking is a legitimate threat. Professor Bridy highlights the FBI’s seizure of the domain name MOOO.COM as an example, which took down 84,000 subdomains even though only ten were problematic.
ICANN, the non-profit body responsible for the smooth-running of the Internet’s Doman Name System, has always insisted that copyright disputes are beyond their mission. As such, it was happy to see registries and rightsholders coming to an agreement.
According to Bridy, however, ICANN is now giving the green light to private agreements that allow corporate and government parties to interfere with DNS without central oversight. That’s a very worrying development, in her book.
“[I]n creating that architecture, ICANN did nothing to secure any procedural protections or uniform substantive standards for domain name registrants who find themselves subject to this new form of DNS regulation,” Bridy writes.
“That omission should be a red flag for those who worry that ICANN’s newly minted independence from the U.S. government will make its internal governance more susceptible to capture by powerful commercial and governmental interests.”
It will be interesting to see where the private deals go from here and if they indeed move beyond copyright enforcement.
Last week the Donuts registry said that fears about a “slippery slope” toward inappropriate content control is unwarranted. Thus far they are correct by stressing that only a few domain names have been suspended under their deal, but that offers no guarantees for the future.