If the Government Can't Get Domain Seizures Right, Why Would Big Pharma Do Better?
So far we've seen no response from the Domain Name Association (DNA) to our criticisms from earlier this month about its self-styled Registry/Registrar Healthy Practices [PDF]. Part of its plan is that domain registries ought to yank online pharmacy domains from the Internet without due process on Big Pharma's say-so.
But an interesting new data point about the wisdom of such a policy emerged this week. It has been reported that Immigration and Customs Enforcement (ICE), part of the United States Department of Homeland Security, had seized the domain vicodin.com, named after a common prescription pain medication. The problem? That domain actually belongs to the manufacturer and registered trademark holder for Vicodin. In other words, it seems that the domain should never have been seized.
We've never been fans of the ICE's domain name seizures. They have been used to violate free speech rights, without any meaningful opportunity for the owner or users of the domain to be heard before the domain is seized. But at least such seizures are issued under a warrant issued by a United States District Court judge, and there is a mechanism of redress (however slow and inconvenient) when a domain is seized wrongfully. That's what happened to the music blog Dajaz1, whose domain was seized by ICE and kept offline for over a year while the recording industry tried and failed to come up with evidence of copyright infringement. And it's what apparently happened today to vicodin.com
If responsibility for the seizure of domain names passes to domain name registries or registrars, at the direction of Big Pharma—as the DNA proposes—all bets are off. We can well imagine that if the DNA's proposal is accepted as an industry-wide practice the number of mistaken domain name seizures will skyrocket, and that its victims will have even less recourse than they have against an ICE seizure.
It's not just pharmacy domains that are at risk. Under a private policy of the registry operator Donuts, an architect of the Healthy Domains Initiative, the Motion Picture Association of America (MPAA) has similar powers as Big Pharma to call for the deletion or transfer of domain names that are alleged to host copyright-infringing material. Although EFF was able to defeat a proposal to make a similar policy into an industry-wide practice, we doubt we'll have heard the last of it.
Domain Name Regulator ICANN met with its community this week in Copenhagen. Big Pharma and Big Content lobbyists were among those who descended on the gathering, to promote their vision of private Internet content enforcement through the domain name system; a privatized SOPA, if you will. So far, ICANN has resisted accepting any such enforcement role, and rightly so. Today's reminder that even the U.S. government can't get this method of enforcement right should send a further note of caution about this misguided approach.