Domain Name Association's Copyright Dispute Resolution Proposal Drawing Continued Scrutiny

The Copyright ADRP concept is “still being developed” beyond what DNA included in its HDI recommendations, said HDI Committee Chairman Mason Cole, domain registry Donuts' vice president-communications and industry relations. A Copyright ADRP would “provide a legally effective and efficient mechanism mitigating pervasive instances of copyright infringement” in the domain name system while still observing registrants' due process rights, DNA said in its HDI recommendations. Cole emphasized that the ADRP would be entirely voluntary, in contrast to ICANN's mandatory trademark UDRP process.

Registries “probably already have the latitude to address systematic and pervasive infringement,” but DNA's aim in proposing the Copyright ADRP is to “move the role of adjudication out of registries' hands and into those of someone who is independent,” Cole told us. “The proposal also establishes due process for both complainants and respondents.” The ADRP process would allow registries to work with an experienced third-party arbitrator to adjudicate copyright infringement issues, which “offers a less costly and more expeditious means of addressing alleged pervasive infringing content as compared to most judicial systems,” the recommendations said. The ADRP includes a mandatory 30-day notice period before a complaint can be filed, DNA said. Decisions reached under the ADRP can be appealed to a court of law and the ADRP process doesn't preclude seeking legal action, DNA said.

Public Interest Registry, the domain registry for the .org top-level domain and an HDI participant, is developing its own copyright ADRP based on DNA's model that may become a template for “the finer points” of such a policy, including specific process rules, Cole said. PIR said it's working with arbitration provider Forum to finalize the rules for its ADRP and aims to roll out the arbitration process by the end of Q1. PIR “is committed to developing a sound procedure that will serve the interests of all involved and believes such a process will contribute to a healthy domain name ecosystem for all,” the registry said in a statement.

PIR's ADRP would require “clear and convincing evidence” of “pervasive and systematic” copyright infringement for the process to find in favor of revoking a registrant's domain name, said an industry executive. PIR's interest in taking the lead in developing the copyright ADRP concept may stem from the pressure the registry has faced from RIAA and other content-side stakeholders to shut down The Pirate Bay, a file-sharing website that the Office of the U.S. Trade Representative listed in December as a “notorious” online market for IP infringement (see 1612210068), the executive said.

DNA's proposal is drawing both support and opposition among stakeholders. Their groups are noticing other stakeholders who are raising concerns about the proposal and seeking further details, EFF Senior Staff Attorney Mitch Stoltz and ICA Counsel Phil Corwin said in separate interviews. Additional stakeholders are considering publicly raising their concerns about DNA's proposal in the near future, though no concrete plan is set, said a domain name industry lobbyist: “I think we've got a huge issue here and people aren't going to be happy to hear about this” as news of the proposal circulates.

Multiple people present at a Generic Names Supporting Organization Council Non-Contracted Parties House meeting last week had “significant concerns” about the proposal, Corwin said. Those concerns extend beyond the current lack of detail on the DNA's Copyright ADRP model to include questions “about whether a UDRP-style approach is suitable for copyright situations where free speech is at stake” since ICANN's UDRP process is only meant to handle trademark disputes, Corwin said.

“To begin setting up private nonjudicial bodies to pass judgment on the content of websites is a very dangerous step,” Stoltz said. “Those sorts of determinations, if they happen at all, must happen in courts. If you create a private arbitration process for copyright claims on the internet wielding power of domain name suspension, then why not one for criticizing [President] Donald Trump?”

Fletcher Heald internet lawyer Kathy Kleiman, who helped write the rules for ICANN's UDRP process, said she believes the process DNA proposed could result in overly broad punishments. “Taking down an entire domain name [for specific copyright acts] is like pulling a tree up by the roots when you only need to cut down a branch” to address the infringement, Kleiman said: “Traditionally, copyright takedowns are done narrowly, with [Digital Millennium Copyright Act] notices targeting a specific piece of content. The type of practice [DNA is proposing] could be a massive violation of free speech.”

Cole acknowledged critics' “slippery slope” concerns about the proposal but said the process DNA recommended would be handled by an independent party and would enshrine due process rules. DNA also disputed those criticisms in a FAQ, saying “providers already may act without a court order on clear cases of infringement, and some do. The ADR is a voluntary process designed to remove the provider as adjudicator.”

Rightside Vice President-Business and Legal Affairs Statton Hammock, a DNA board member, said he's interested in the group's proposal. He will monitor how PIR implements its planned ADRP process before deciding whether to recommend Rightside consider a similar approach. “Obviously, the registries and registrars have signaled that they’re interested in something like this or have considered it on a theoretical basis,” he said. Hammock said successfully putting DNA's proposal into practice will take time because it's never been done.

Hammock said he believes critics of the group's proposal are “less concerned about the [recommended] practices and more against the fact that we’ve come up with these practices and not involved other members of the community.” Critics are incorrectly equating voluntary best practices with ICANN-style policymaking, Hammock said. “This has nothing to do with policy and if the industry itself wants to voluntarily develop best practices, they don't have to open that up the community for input.” Critics “think that any time two or more ICANN-affiliated groups come together and think of a solution to a problem, that's creating policy but that's not what this is,” he said: ICANN “made it clear that it doesn't monitor content, so something like this would have to be outside the ICANN process, which is why it's in DNA's realm.”