February 10, 2016 | By Mitch Stoltz

MPAA May Like Donuts, but They Shouldn’t Be the (Copyright) Police

The companies and organizations that run the Internet’s domain name system shouldn’t be in the business of policing the contents of websites, or enforcing laws that can impinge on free speech. The staff of ICANN, the organization that oversees that system, agrees. That’s why it’s not surprising that the Motion Picture Association of America, which has consistently sought power to edit the Internet, is now bypassing ICANN and making private deals with domain name registries.

The company Donuts controls about 200 new top-level domains, including .movie, .theater, and .media. Yesterday, MPAA announced that it has made a deal with Donuts that will make MPAA a “trusted notifier” for reporting copyright-infringing websites, with the expectation that Donuts will disable or suspend those websites’ domain names. According to the website TorrentFreak, this will make MPAA “the definitive authority on what is considered a large-scale piracy website.” This raises the risk of a website losing its domain name, or having it co-opted, without a court judgment or other legal process.

The agreement has some limitations. Donuts isn’t committing itself to suspend every domain name MPAA wants gone. According to the announcement, Donuts will “work with registrar partners to contact the website operator and seek additional evidence” before deciding whether to take a website’s name away. But Donuts may have business reasons for bowing to MPAA’s demands, such as encouraging the major studios that make up MPAA to buy lucrative domains in the .movie space.

The agreement only applies to a group of new top-level domains that are not in wide use yet—it doesn’t apply to the more common .com, .net, or .org domains, or to country-specific domains like .uk. Other domain name registries can distinguish themselves in the market by protecting their customers against censorship—and many do.

The danger in agreements like this is that they could become a blanket policy that Internet users cannot avoid. If what’s past is prologue, expect to see MPAA and other groups of powerful media companies touting the Donuts agreement as a new norm, and using it to push ICANN and governments towards making all domain name registries disable access to an entire website on a mere accusation of infringement. We’ve seen a similar dynamic with sites that host user-generated content: having convinced YouTube and Facebook to impose rigid and abuse-prone automatic copyright filters, major entertainment companies are now trying to make those filters mandatory for every site, leaving users no real options. And MPAA’s president, former Senator Christopher Dodd, has said that he wants “voluntary agreements” like these to be turned into legislation.

Other business interests, as well as governments, who want to suppress particular types of speech on the Internet will jump on this bandwagon. The World Trademark Review blog reported that after the Donuts agreement, “[t]he door . . . appears to be open” for similar agreements aimed at other “illegal activity.” On the global Internet, a so-called “illegal” website could be one that contains blasphemy, “hate speech,” criticism of government officials, or photographs of a woman's uncovered legs or arms. And if domain registries in a global market give U.S. movie studios the power to declare which websites are “illegal,” it will be harder for them to resist market pressure and legal threats from other corporations and governments who seek the same power.

Taking away a website’s domain name means interrupting all of the speech that takes place on that site. It creates a much greater danger of censorship than suppressing individual pages or files. And the domain name system only works so long as most Internet users trust it to direct them to the websites they ask for, not only those that politically connected companies and repressive governments want them to see. That’s why domain registries and registrars shouldn’t take part in policing the contents of websites and services. And that’s why we’ll continue to fight the website-blocking power grab.


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