Browse Day: February 9, 2017

EFF Has Harsh Words for Healthy Domains Initiative

The Electronic Frontier Foundation has some pretty harsh things to say about the Domain Name Association’s Healthy Domains Initiative.

The Domain Name Association is “a new non-profit global business association that represents the interests of the domain name industry.” Basically, it represents registrars and related companies.

The Healthy Domains Initiative was launched by the DNA in early 2016 with the vague promise of developing guidelines and best practices for registrars and similar organizations. On February 8, 2017, the DNA published what is apparently the first four of these best practices, including this gift to rightsholders,

Establishing a voluntary third party system for handling copyright infringement — The DNA supports the creation of a voluntary third party mechanism, similar to the Uniform Dispute Resolution Policy, for handling trademark violations, which would address illegal infringement of copyrighted material through the use of domain names. The system would be available for voluntary participation by registries and registrars who would like to work with content owners to combat illegal activity on a more efficient and cost-effective basis, but still adhering to key tenets of due process.

In a more detailed explanation of the proposal, the DNA describes this process this way,

The proposal advanced here is 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.

In a nutshell, the DNA is proposing that registrars force a mandatory arbitration process on domain name owners for copyright cases that is outside the already existing legal framework for dealing with copyright issues on the Internet. As the EFF notes, this is an awful idea,

The HDI recommends the construction of “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.” This would involve forcing everyone who registers a domain name to consent to an alternative dispute resolution (ADR) process for any copyright claim that is made against their website. This process, labelled ADRP, would be modeled after the Uniform Dispute Resolution Policy (UDRP), an ADR process for disputes between domain name owners and trademark holders, in which the latter can claim that a domain name infringes its trademark rights and have the domain transferred to their control.

This is a terrible proposal, for a number of reasons. First and foremost, a domain name owner who contracts with a registrar is doing so only for the domain name of their website or Internet service. The content that happens to be posted within that website or service has nothing to do with the domain name registrar, and frankly, is none of its business. If a website is hosting unlawful content, then it is the website host, not the domain registrar, who needs to take responsibility for that, and only to the extent of fulfilling its obligations under the DMCA or its foreign equivalents.

Second, it seems too likely that any voluntary, private dispute resolution system paid for by the complaining parties will be captured by copyright holders and become a privatized version of the failed Internet censorship bills SOPA and PIPA. While the HDI gives lip service to the need to “ensure due process for respondents,” if the process by which the HDI Practices themselves were developed is any guide, we cannot trust that this would be the case. If any proof is needed of this, we only need to look at the ADRP’s predecessor and namesake, the UDRP, a systemically biased process that has been used to censor domains used for legitimate purposes such as criticism, and domains that are generic English words. Extending this broken process beyond domain names themselves to cover the contents of websites would make this censorship exponentially worse.