ICANN, Copyright Infringement, and the “Public Interest”

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.