Proposed Copyright Dispute Resolution Plans' Future Questioned
The rollback of plans to develop a voluntary third-party mechanism to address infringement disputes with the domain name sector raises questions about those plans' future, stakeholders said in interviews. Public Interest Registry, the domain registry for the .org top-level domain, said Thursday it will pause implementation of its planned Systemic Copyright Infringement Alternative Dispute Resolution Policy (SCDRP) to "reflect” on concerns raised by the Electronic Frontier Foundation and others (see 1702100054, 1702170058 and 1702230065). PIR was implementing SCDRP in concert with the Domain Name Association's proposal for its Copyright Alternative Dispute Resolution Policy (ADRP), which was modeled on ICANN's trademark-centric uniform dispute resolution policy. DNA made the proposal in Healthy Domains Initiative recommendations (see 1702080085).
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DNA plans to “step back” from its Copyright ADRP recommendations given PIR's moratorium and stakeholders' concerns, HDI Committee Chairman Mason Cole told us Friday. DNA instead will see what the domain name industry “wants to move forward with” on copyright dispute resolutions, he said. DNA will also “observe” any dispute resolution efforts that the industry takes independently and then “refine its recommendations later,” Cole said. DNA planned to make its decision public after our deadline Friday. DNA decided to roll back the Copyright ADRP recommendations partly because the group didn't want the controversy over the proposal to detract from the other HDI recommendations, Cole said. DNA plans to continue to hold conversations with members and others on the Copyright ADRP proposal; that will remain an “industry-led effort,” he said.
DNA, PIR and the Internet Society,the registry's parent organization, faced growing pressure to re-evaluate the plans ahead of Thursday. Members of the ICANN Generic Names Supporting Organization Council's (GNSO) Non-Contracted Parties House and other organizations were planning to send a letter to ISOC and PIR this week urging a halt to the SCDRP plans until there could be a dialogue within the internet community on broader concerns with both DNA's proposal and PIR's implementation of it, said Internet Commerce Association Counsel Phil Corwin. Pausing SCDRP provides a needed opening for that conversation to take place, he said. ICA was among those that raised concerns about the DNA proposal and PIR's plans.
ISOC has “been in conversations with members of the [ISOC] community who have made it clear that they need more dialogue about the nature and scope of the SCDRP,” said Vice President-Global Policy Development Sally Wentworth in a statement to us. “We therefore welcome PIR’s decision to pause and reflect on these concerns.” Wentworth earlier acknowledged PIR's decision to pause the SCDRP plans in a Thursday email to the group's internet policy discussion list.
Engagement of stakeholders beyond the domain name industry may help dispel “misconceptions” about the copyright dispute resolution plans and ensure the wider internet community feels they had the chance to weigh in, said GNSO IP Constituency President Greg Shatan. EFF and others were able to frame the DNA proposal and PIR's plans as a form of “censorship that would allow [domain name] takedowns based on allegations, which is not a fair characterization,” Shatan said. “What may have been even more of a problem was that ISOC members and others involved in PIR may haven't felt consulted.” The “lack of understanding and the lack of communication go hand in hand. I think this is a case where PIR was getting ahead of their constituency,” he said. Shatan said he hopes more community engagement will allow stakeholders to realize the plans only target “systemic and pervasive copyright infringement” because the “information that came in to fill the vacuum” suggested otherwise.
A community dialogue on the copyright dispute resolution plans doesn't necessarily need to take the form of an ICANN-style multistakeholder process, though “I wouldn't object,” Corwin said. “While that is a more lengthy process, if something solid comes out of that which everyone's had input on, that would have some advantages.” More transparency is needed but community dialogue on the DNA proposal and PIR plans should continue to emphasize that those efforts are meant to be a way for the domain name industry to “work outside of the ICANN construct to solve a problem” that doesn't fit within the organization's remit “in a way that is efficient, effective and balances the rights of all parties,” Shatan said. “That's a goal that should be supported by everybody.” Corwin and Shatan predicted affected parties are likely to discuss the DNA and PIR plans during ICANN's March 11-16 meeting in Copenhagen.
EFF believes DNA and PIR should consider abandoning their copyright dispute resolution plans entirely, said Senior Staff Attorney Mitch Stoltz. “We've said consistently that domain name companies shouldn't be in the business of policing the content of websites whether on the grounds of copyright or anything else,” he said. “If these folks continue to believe that the domain name companies should be involved in content regulation, the place to raise that is within ICANN, not to end-run ICANN and make a unilateral decision that affects millions of websites.” Stoltz called for the plans' abandonment in a Friday blog post. He questioned “whether the pursuit of copyright 'pirates' justifies new architectures of censorship that can easily be turned to other ends, like the suppression of political dissent or news reporting, or the preservation of media monopolies.”