ICANN, Copyright Infringement, and the "Public Interest"
Blog Post
March 12, 2015
Writing for the Washington Post's website earlier this week, Open Technology Institute Senior Program Fellow David G. Post [asked the question]: Is ICANN - the Internet Corporation for Assigned Names and Numbers, the private sector overseer of the Internet's Domain Name System (DNS) – getting into the business of policing the world’s domains for copyright infringement? Though enforcing copyright obligations is far outside the scope of ICANN's articulated mission of DNS management, it does appear that ICANN might be planning to use the "public interest commitments" it requires all domain name registries and registrars to agree to as a means of shutting down domains from which copyright infringements are taking place. Post suggests this is a very bad idea, and one that needs to be addressed as the US government contemplates relinquishing its oversight over ICANN's activities in managing the DNS. As Post writes,
Letting ICANN (or anyone else, for that matter) leverage its control over fundamental Internet technical infrastructure so as to regulate the content of Internet communications and please notice, it’s not just infringement of copyright on that list, it’s fraud, and deceptive practices, and any activity contrary to applicable law (child pornography? hate speech? defamation?) is a dreadful idea, for any number of reasons. We fought (and won) this battle once before – when the US Congress’ SOPA and PIPA legislation in 2011 sought to enforce US copyright law through the manipulation of the global DNS; the wider Internet community rose up to fight it off then, and it needs to do so again. Registries and registrars, in order to preserve their business operations, will over-deter, given that the risk that ICANN finds them not to be acting with sufficient vigor is much greater (because it involves their disappearance from the entire DNS ecosystem) than the risk of acting too vigorously; for end-users, this will look a lot more like a “complaint & annihilation” scheme than “notice and takedown.” Due process for alleged infringers will undoubtedly be short-circuited, because due process costs time and money and domain name registrars are not in a position to provide it. Mistaken identification, as we have seen time and time again, will be made, and the hierarchical nature of the DNS means that an action to revoke one domain name – example.blog – affects all of that domains subdomains (first.example.blog, second.example.blog), even though those domains may be used for perfectly lawful purposes. Simply stated, ICANN has not been set up, and is not the appropriate vehicle, to make global copyright (or consumer protection, or fraud, or pornography, or defamation) law – and yet that is precisely the position they appear to be taking on in the name of “contractual compliance.”
You can read the whole piece here, via the Post's Volokh Conspiracy blog.