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Thoughts on the Proposed Copyright Alternative Dispute Resolution Policy

Doug Isenberg

A proposal from the Domain Name Association (DNA) would provide copyright owners with a new tool to fight online infringement — but the idea is, like other efforts to protect intellectual property rights on the Internet, proving controversial.

The proposed Copyright Alternative Dispute Resolution Policy is one of four parts of the DNA's "Healthy Domains Initiative" (HDI). It is designed to:

construct a voluntary framework for copyright infringement disputes, so copyright holders could use a more efficient and cost-effective system for clear cases of copyright abuse other than going to court and registries and registrars are not forced to act as "judges" and "jurors" on copyright complaints.

The concept of the Copyright ADRP appears similar to the longstanding Uniform Domain Name Dispute Resolution Policy (UDRP). But, unlike the UDRP, which applies only to domain names, the Copyright ADRP would apply to what the DNA describes as "pervasive instances of copyright infringement."

While many domain names are used in connection with infringing websites, the UDRP is only available when the domain name itself is identical or confusingly similar to a relevant trademark. As a result, the UDRP is often not available to copyright owners, despite obviously infringing content.

Although the Digital Millennium Copyright Act (DMCA) already is frequently invoked by copyright owners to take down infringing content, it has significant limitations. For example, many website hosting companies (especially those outside the United States) do not participate in the DMCA system, and the counter-notification process for infringers can easily be used to defeat a DMCA claim. In those cases, a copyright owner often has no choice but to accept the infringing website or incur the burdens of fighting it in court.

The Copyright ADRP is a fascinating idea that, if properly drafted and implemented, could help reduce infringing content on the Internet and would complement both the UDRP (and other domain name dispute policies) as well as the DMCA.

Still, the idea of the Copyright ADRP already is meeting resistance. A blog post at Domain Incite expresses concern that the policy could be unfairly applied "in favor of rights holders." The Electronic Frontier Foundation reportedly has called it "ill-conceived" and "the very epitome of shadow regulation." And the Internet Commerce Association is worried about "a chilling effect on the domain leasing and licensing business."

Given the early stage of the proposed Copyright ADRP and the undeniable prevalence of online copyright infringement, the criticism seems premature and/or unwarranted. Like any legal enforcement mechanism, the devil will be in the details — and, at this point, the details seem to be minimal.

As of this writing, it is unclear how the DNA's proposal would be applied other than a broad statement that it should be limited to instances "where the alleged infringement is pervasive or where the primary purpose of the domain is the dissemination of alleged infringing material." How to define "pervasive" or "primary purpose" (let alone "infringement" — something with which the courts have long struggled) is far from clear.

Plus, numerous questions remain to be answered. Among the most important: As a voluntary dispute system (not mandated by ICANN), which registries and registrars would adopt the Copyright ADR? And who would administer it?

The answers to all of these questions are worth pursuing because, regardless of whether the DNA's idea is workable, reducing online copyright infringement is a laudable goal that will only strengthen the usefulness of and confidence in the Internet.

By Doug Isenberg, Attorney & Founder of The GigaLaw Firm. Learn more by visiting The GigaLaw Firm website. Doug Isenberg also maintains a blog here.

Related topics: Domain Names, Intellectual Property, Law

 
   
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Comments

It's a nightmarish idea Brandt Dainow  –  Feb 17, 2017 1:40 AM PST

It is not the role of technical administration bodies to police what people do with their websites.  This system can have real consequences for people - it allows for the domain name to be taken from them and delivered to the complainant.  This could result in significant financial harm to the defendant.  Large corporations can easily overwhealm defendants with huge quantities of legal documentation, forcing them to engage their own legal teams if they want any chance of defending themselves. There are unresolved issues of who has the authority to adjudicate, and who has the authority to determine who can adjudicate.  This is not some simple situation like creating a domain name very similar to a trademark.  For example, most people criticising an organisation use documentation from that organisation to prove their case - this system offers a way for companies to close down legitimate criticism under the pretense of copyright.
Breach of copyright is already handled by courts.  There is no need to private bodies to decide they want to become judges as well.  Once we start down this path, what other use of websites will we decide we can adjudicate.  How long will it be before people start complaining on religious, moral or cultural lines and start clammering for the right to shut down websites.
We can't have a society in which organisations suddenly take it upon themselves to start adjudicating disputes and imposing real harms on people.  The danger lies in the fact there is no one watching over the judges in such a situation, and so no way to ensure they are fair and no way for the public to know they are fair even if they are.  If you are going to inflict a genuine harm on someone, then some form of judicial/state authority and oversight is fundamental.  Private judicial bodies like this, without firm oversight, always lead to corruption and misuse of power.  That's not some airy principle, it's a lesson we've learned through centuries of history.

I don't think the criticism is premature, Todd Knarr  –  Feb 17, 2017 9:25 AM PST

I don't think the criticism is premature, especially given your own phrasing where you describe the rights-holder having to prove infringement in court as a burden and a proposal bluntly aimed at reliving them of that burden as a good thing. If I made the unsupported allegation that you'd damaged my car to the tune of $50,000, is my having to produce evidence before a court and otherwise prove that a) my car was in fact damaged and b) you were the one responsible for that damage a burden, or merely the minimum that should be required of me? Should I be able to simply collect damages from you on my word alone, or should I only be able to do that after I've proven to a neutral third party (the court) that I've proven my case in a venue where you can address and rebut my claims with your own evidence?

I'd note that in the US copyright infringement claimants have a far-from-sterling record. In a non-trivial number of recent cases they've in fact committed copyright infringement themselves and then used their distribution of the copied material as the basis of a copyright claim against the original author of the material. There's also the Prenda Law fiasco, the SCO v. IBM debacle and Oracle v. Google case over whether Google has a right to implement it's own library compatible with the Java library interfaces as examples of copyright claimants being the bad actors.

legally doubtfull David C. Collier-Brown  –  Feb 24, 2017 5:43 AM PST

As a public policy consideration, creating a private right of prosecution through imposing contract terms is suspicious: A law prof writes at Washington and Lee that we have an "Ambivalent Drift into Online Content Regulation", https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2920805

I advise caution, and agree with Mr. Crocker et all that we shouldn't be involved with the contents of domains, only their names.

--dave

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