The United States Trade Representative (USTR) has built an arsenal of tools to pressure other nations to enact enforcement measures that benefit major entertainment companies such as the members of the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA). Since a few years ago, it began releasing a stand-alone Notorious Markets List. It's an annual publication where the USTR lists “notorious” intellectual property infringing markets that supposedly enable "substantial copyright piracy and trademark counterfeiting" that harms U.S. businesses. Until now, it mostly includes online and offline markets where people provide counterfeit and infringing goods.
The latest report for 2014 was just released last week. The USTR listed 21 websites, including torrent and streaming sites, but this is the first year it listed domain name registrars. In a section called "New Issue Focus: Domain Name Registrars", the USTR claims that some registrars are "playing a role in supporting counterfeiting and piracy online." It writes:
These entities reportedly refuse to abide by the [ICANN] rules that are designed to foster legitimate activity on the Internet, and instead help to create an atmosphere of lawlessness that adversely affects others, often profoundly. [...] One respondent [to their open request for comments] identified several registrars that have apparently refused requests to lock or suspend domain names used to sell suspected counterfeit pharmaceuticals to consumers worldwide.
The report goes on to claim that registrars are required, under agreements with ICANN, to take action by locking or suspending domains when they receive a notice about one of their domains facilitating illegal activity. This isn't true, and by claiming it is, USTR is here repeating the United States entertainment industry's current talking points. What is true is that the RIAA and MPAA have recently asked ICANN, the multi-stakeholder body that administers the global domain name system, to establish that domain registrars must take down websites over copyright infringement complaints. They continue to request that ICANN do more to pressure domain registrars and registries into suspending domains over a copyright infringement notice. On the same day as the Notorious Markets list was published, the RIAA wrote a letter to ICANN claiming that it is not "appropriate" for registrars to deny any obligation to respond to their members' complaints. [PDF].
But domain registrars do not have an obligation to respond to a random third party's complaints about the behavior of a domain name user. Unless ordered by a court, registrars cannot be compelled to take down a website. What the entertainment industry groups are doing is exaggerating the obligations that registrars of global top-level domains (gTLDs) have under their agreement with ICANN to investigate reports of illegal activity by domain owners, an expansion of responsibilities that is, to put it mildly, extremely controversial, and not reflected in current laws or norms.
Yet the USTR appears to have accepted this argument by the RIAA and MPAA as global truth, with damaging consequences. For instance, the USTR calls out Tucows, a Canadian domain name company. They say that “Tucows is reportedly an example of a registrar that fails to take action when notified of its clients’ infringing activity”. As Tucows itself correctly states on its website:
We are not the legal owners of the domain, we are just the wholesale Registrar that the domain was purchased through using one of our Providers. The domain is not hosted on our network, nor do we provide bandwidth, web hosting, or email services for this domain. We cannot just delete domains that have objectionable words in them.
Certainly, some registrars do cave in and suspend domains at the first whiff of a complaint. But the registration agreement that registrars sign with ICANN does not require them to do this. It requires them to receive and investigate reports of abuse of domain names from national authorities, but leaves them with discretion as to what steps, if any, are necessary and appropriate for it to take in response.
For a domain registrar to act as the USTR is suggesting runs against the model of intermediary liability that is embodied in other provisions of U.S. law, such as section 230 of the Communications Decency Act, which establishes that Internet intermediaries are not liable for many types of content uploaded by their users. These laws embody a tradition of free speech protections that require a strong legal justification, and a fair process, before speech can be suppressed by fiat. Of course, if a court orders the registrar to suspend, delete, or transfer the domain, then the registrar must comply, and Tucows is no exception. In the United States, a few federal judges have made such orders with little compunction, on the legal theory that domain names are property capable of seizure. This has resulted in the seizure of domains that may not have hosted any illegal content to begin with, as well as domains hosting foreign websites that were ruled legal under the law of that foreign country. Tucows is based in Canada, where Internet domain name seizures, although possible, have not been prevalent.
By resisting such unilateral demands, Tucows is doing exactly what it ought to be doing. If registrars are expected by governments to comply with all requests to police their customers, they will quickly be sucked into unresolvable controversies between unclear authorities. By asserting that Canadian companies must shut down domains based on mere accusations, the USTR is not only undermining those companies' protections under Canadian law, but weakening the protections from external interference that American companies currently have in the United States. The MPAA and RIAA may want foreign registrars to comply with their demands now. They may change their tune when their own members' websites are deleted from the Internet for unproven and unfounded complaints from people or governments seeking to skirt due process anywhere and everywhere in the world.