Academic journal article Washington and Lee Law Review

Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation

Academic journal article Washington and Lee Law Review

Notice and Takedown in the Domain Name System: ICANN's Ambivalent Drift into Online Content Regulation

Article excerpt

Table of Contents

I. Introduction....................................1346

II. ICANN 101...................................1349

III. Trademarks, Cybersquatting, and the UDRP...................................1353

IV. Notice and Takedown in the New gTLDs...................................1359

A. The Background: From Congress to ICANN...................................1362

B. ICANN's Legal Infrastructure for DNS-Based Copyright Enforcement...................................1366

C. The MPAA's "Trusted Notifier" Program...................................1371

D. The Trusted Notifier Program and the UDRP Compared...................................1373

V. Understanding the Stakes and Consequences...................................1376

A. A Cheap and Efficient Process for Right Holders...................................1376

B. A Problematic Process for Registrants and Users...................................1378

C. A Process Outside ICANN's Authority and Competence...................................1381

VI. Conclusion...................................1383

I. Introduction

Enforcing intellectual property rights through the administration of the Domain Name System (DNS)-the Internet's addressing system-is not a revolutionary development. Trademark rights have been enforced to a limited extent within the DNS since 1999, when the Internet Corporation for Assigned Names and Numbers (ICANN)-the specially-created entity that oversees governance and administration of the DNS-introduced the Uniform Domain Name Dispute Resolution Policy (UDRP) for adjudicating fights over domain names containing trademarked words and phrases. 1

Copyright enforcement, by contrast, has never been ICANN's bailiwick; nor has it been the province of DNS registries or registrars-the intermediaries that operate the DNS on a day-to-day basis under contract with ICANN.2 ICANN has historically recognized that its role as an online intellectual property enforcer stops at trademarks in domain names and does not extend to copyrights in online content.3 Its public messaging on this point is quite clear.4

In recent years, however, ICANN has faced increasing pressure from corporate copyright holders, who believe that all online intermediaries, including those that operate the DNS, should be responsible for enforcing copyrights.5 Although ICANN has continued to resist direct involvement in copyright enforcement activities, it accommodated right holders in 2013 by altering its contracts with DNS intermediaries to support a system of extra-judicial, notice-driven sanctions. That system includes cancellation of domain names for "pirate sites" about which right holders complain.6 Through these contractual modifications, ICANN has abetted the development and implementation of a potentially large-scale program of privately-ordered online content regulation in the Internet's new generic Top Level Domains (new gTLDs).7

This Article maps ICANN's ambivalent drift into online content regulation through its contractual facilitation of a "trusted notifier" copyright enforcement program between the Motion Picture Association of America (MPAA) and two registry operators for new gTLDs, Seattle-based Donuts and Abu Dhabi-based Radix.8 For domain name registrants, who are the target of this new-and wholly unregulated-enforcement program, and for members of the public who worry about increasing online censorship, the development is cause for concern.

After discussing ICANN's history, mission, and circumscribed role in the resolution of disputes over trademarks in domain names, this Article reckons both descriptively and normatively with the fact that registry operators are now acting-without precedent but with ICANN's blessing-as private copyright enforcers on behalf of right holders.9 My focus here is a program that is currently limited to alleged copyright violations; the program is designed, however, to flexibly address a wide range of activity that a wide range of notifiers might consider illegal or abusive. …

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