EFF, ICA Criticize Domain Name Association Proposal for Copyright Dispute Mechanism

The Electronic Frontier Foundation and Internet Commerce Association separately criticized the Domain Name Association’s proposal to create a third-party mechanism akin to ICANN’s trademark-centric uniform dispute resolution policy (UDRP) that would address copyright infringement through the use of domain names. DNA proposed the mechanism Wednesday in recommendations for its Healthy Domains Initiative (see 1702080085). The UDRP-equivalent mechanism “would establish a new unregulated private legal dispute system for domain names involving claims of copyright infringement outside of any ICANN-mandated legal rights protection mechanisms,” said ICA Counsel Phil Corwin in a Friday blog post. “It would also likely slam the door shut on the growing and legitimate practice of licensing and leasing domain names with no trademark issues.” Corwin, who co-chairs ICANN’s Review of All Rights Protection Mechanisms in All gTLDs Policy Development Process (PDP), said he's also concerned creation of a copyright UDRP equivalent could give trademark holders a way to bypass ICANN policies. The RPM PDP is reviewing ICANN’s post-delegation dispute resolution procedures, which trademark holders use to bring trademark infringement concerns directly to a domain name registry (see 1606240055). EFF believes the proposed copyright mechanism “is a terrible proposal,” said Senior Global Policy Analyst Jeremy Malcolm and Senior Staff Attorney Mitch Stoltz in a Thursday blog post: “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 shelved 2012 Stop Online Piracy Act and Protect IP Act. EFF and ICA criticized DNA for not fully consulting its members before making the recommendation. “In any purported effort to develop a set of community-based principles, a failure to proactively reach out to affected stakeholders, especially if they have already expressed interest, exposes the effort as a sham,” EFF said. “Online service providers, in their acceptable use policies, establish the ability to address illegal behavior such as infringement, and many do,” said DNA HDI Committee Chairman Mason Cole in an email. Cole is Donuts vice president-communications and industry relations. “An alternative dispute process merely enlists a neutral third party for adjudication, relieving providers of the need to be ‘judge and jury,’” Cole said. “Suggesting that a voluntary mechanism that does something about a possible illegality is in fact serving a select few is irresponsible and preposterous. We’re interested in stewardship of the namespace for everyone.”