There’s Pork In That Bill; DNA’s HDI Overreaching with Registry Handling of Copyright Infringement

NEW YORK, NY – The Domain Name Association (DNA), a new non-profit association “supposedly” (I just learned about them) representing the interests of the domain name industry, is suggesting in its “Healthy Domain Initiative” (HDI) four objectives for registry and registrars to participate in voluntary actions which are intended to protect and advance the evolution of the domain name system.

Again, I use the word “supposedly” only because I just recently heard of this organization (EFF also refers to them “relatively new”) and one of these four objectives seems to place registries and registrars in an unusual position – to intervene or determine the level of abuse or legality of copyright infringement incidents (of their customers) – a highly complex and troublesome initiative that does not belong outside of the hands of the already adequate legal processes of law.

Appendix D: Voluntary Third Party Handling of Copyright: The purpose of adoption and implementation of a Copyright Alternative Dispute Resolution Policy (“Copyright ADRP”) is to provide a legally effective and efficient mechanism mitigating pervasive instances of copyright infringement in the DNS, while ensuring that Registrants’ due process rights are observed. This document provides recommendations to Registry Operators as to how to structure and implement a Copyright ADRP should they elect to do so.  

In other words, the Domain Name Association supports the creation of a process similar to the Uniform Dispute Resolution Policy (UDRP), for handling trademark violations which would be called an Alternative Dispute Resolution Policy (ADRP). This policy, in short, would be created to better and more quickly facilitate the taking or confiscating of a domain name from its registrant. Wonderful.

I don’t believe this should be of any concern to the registrar, in part, because as mentioned in the HDI Introduction and Context document “Registry Operators are not jurists or experts in Copyright law and are not in a position to admit and evaluate evidence.” Enough said. Registries and registrars should not be involved in the process at all and Copyright infringement issues should be left to the courts to mitigate and determine along with its hefty civil fines and criminal remedies.

What the domain industry does not need is more red-tape.

There are seven (7) recommendations for Registry operators to follow in the event they choose to participate in this new fourth part of the Healthy Domain Name initiative – but let’s look at recommendation number five (5).

The Copyright ADRP should have limited remedies available.  No monetary damages or relief beyond suspending, locking or transferring the domain name [to the complainant] should be available.

In what instance would the registry decide it necessary to “transfer the domain name”?

According to the Internet Commerce Association (ICA): An adverse ruling against the domain registrant would result in “cancellation of registration or transfer to Complainant”. A fuller explanation in the background paper posits that the aim of this “Copyright Alternative Dispute Resolution Policy (“Copyright ADRP”) is to provide a legally effective and efficient mechanism mitigating pervasive instances of copyright infringement in the DNS, while ensuring that Registrants’ due process rights are observed”.

This fourth provision of the Healthy Domain Name initiative seems far out-of-reach of what is necessary to protect and advance the evolution of the domain name system. The HDI announced itself by publishing the “first set” of recommended healthy practices, grouped into four areas total:

1. online security abuse (Appendix A: Security Threat Mitigation Proposal);
2. child abuse mitigation (Appendix B: Child Abuse Content Mitigation Proposal);
3. complaint handling from illegal online pharmacies (Appendix C: Rogue Pharmacy Abuse Report Proposal);
4. online copyright infringement (Appendix D: Voluntary Third Party Handling of Copyright Infringement Cases)

The first, second and third parts are probably fine when it comes to protecting and advancing the evolution of the domain name system, but where does this online copyright infringement suggestion come from? And who determines if the content in question is in fact, “pervasively infringing”, the registry itself – a group of registry administrators on a panel?  The registry should not be involved at all; just as they should not be named as a party under a Copyright ADRP – just leave them out of it completely.

Copyright law is a house of cards. New rules have been added on top of old rules which contradict overlap and confuse most people. Then add on the Fair Use principle, another complex multi-part mess that nobody who’s not a lawyer understands. The loss of domain name should not be anywhere near this topic. The Healthy Domain Initiative reminds me of pork-barrel politics where you’ve got a good bill you’re trying to pass, but you can’t gather enough support for it (from the other side) unless you cram one awful provision in there to get it done.

1. https://www.eff.org/deeplinks/2017/02/healthy-domains-initiative-censorship-through-shadow-regulation
2. http://domainincite.com/21517-the-pirate-bay-likely-to-be-sunk-as-org-adopts-udrp-for-copyright
3. http://www.thedna.org/wp-content/uploads/2017/02/DNA_Healthy_Practices_2017.pdf
4. http://www.thedna.org/domain-name-association-outlines-healthy-practices-part-key-initiative/
5. http://www.internetcommerce.org/dna-unveils-hdi-with-copyright-udrp/
6. http://www.circleid.com/posts/20170207_domain_name_association_outlines_healthy_practices/

UPDATE: 2/23/2017

Washington Internet Daily

Public Interest Registry said it will indefinitely pause “further development” of its planned Sys­temic Copyright Infringement Alternative Dispute Resolution Policy (SCDRP) amid stakeholder scrutiny. PIR, the domain registry for the .org top-level domain, was developing SCDRP in concert with the Do­main Name Association’s development of its Copyright Alternative Dispute Resolution Policy, a voluntary third-party mechanism akin to ICANN’s trademark-centric uniform dispute resolution policy that would address copyright infringement through the use of domain names (see 1702080085). The Electronic Fron­tier Foundation and Internet Commerce Association were among stakeholders criticizing DNA’s proposal and seeking further information on PIR’s plans (see 1702100054 and 1702170058). PIR said Thursday it paused development of SCDRP to “reflect on those concerns and consider forward steps.”

John Colascione

About The Author: John Colascione is Chief Executive Officer of SEARCHEN NETWORKS®. He specializes in Website Monetization, is a Google AdWords Certified Professional, authored a how-to book called ”Mastering Your Website‘, and is a key player in several online businesses.