SOPA on a Rope?

There has been an immense amount of talk lately regarding a bill currently making its way through US Congress known as the Stop Online Piracy Act (or SOPA).  SOPA has been fashioned as an effective response to rampant online piracy of copyrighted content by granting the Attorney General rather broad and sweeping powers to attack infringing websites. The law also gives individual rights holders a new procedure complete with remedes they’ve never had access to before.

The bill is a companion to the equally controversial PROTECT IP act, also being debated by congress. These two bills signify a sharp change in the American copyright landscape, specifically as it pertains to the Internet.

In addition to granting the Attorney-General the power to obtain a court order against a site that is either “committing of facilitating online privacy”, he may also order third party payment providers (such as Visa or PayPal) and online ad networks to stop supporting and dealing with the site in question.

photo by mikeleeorg

Furthermore, the Attorney-General may order the de-indexing of allegedly infringing sites from search engines.  Many have likened this rather extreme measure to the Internet censorship protocols enacted by the Chinese government (known coloquially as ‘The Great Firewall”).  While this may be a slightly extreme appraisal, this measure in particular brings up significant free speech issues.

As mentioned above, not only the Attorney-General but regular rights holders have been given powerful enforcement tools.  If a rights holder believes a site is infringing their copyright, they must undertake a two step process: First, they must contact payment providers and ad networks doing business with the site in question.  Upon forwarding them a compliant, they are to cease their service in relation to the website and forward the complaint to the owner of the domain. At this point, the site owner must reply and explain how their activities are not infringing copyright (eg. the material is legally licenced, fair use etc.).  if they do not, the rights holder may apply to a court for a limited injunction on the website.  

SOPA tries to incentivize the voluntary coming forward of ad and payment networks by extending them immunity from liability if they ”squeal” on an instance of copyright piracy or trademark infringement.

Finally, the bill expands the penalties related to certain activities including streaming video and various instances of counterfeiting.

Supporters of the bill tout it as the weapon American rights holders need to effectively police their IP rights. Supporting organizations include the obvious players such as the Recoding Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) but also large commercial entities like Nike, Ford and Pfizer.  SOPA would presumably make it easier for those large entities to enforce their trademark rights, adding to the ICANN Uniform Dispute Resolution Policy (UDRP).  While the latter only allows rights holders to go after infringing domain names, SOPA would allow them to pursue websites that make use of their trademarks in the actual content of the site itself.

Detractors contend that the bill is an absolute outrage and must be killed immediately. Representatives on both sides of the house have been outspoken critics, among them Rep. Nancy Pelosi and current Republican nominee for presidential candidacy Rep. Ron Paul.  In Rep. Paul’s own words, SOPA will likely result in "an explosion of innovation-killing lawsuits and litigation.”

Some even question the efficacy of the bill.  Sure the Attorney-General may order sites banned form the American web, but the DNS can be manipulated in creative ways to circumvent this roadblock. As was born witness to during this years “Arab Spring”, people can use mirror and proxy servers to get around national quarantines of the Internet.

The advent of these new measures also brings into question the utility of the DMCA’s notice and take-down system.  If SOPA passes, it will create a far stronger mechanism than what the DMCA currently offers thereby rendering those remedies obsolete. Unfortunately, the DMCA notice and take-down represents  significantly more balanced approach to dealing with piracy on the Internet than does the potentially Ex Parte (legal jargon meaning a hearing absent one of the parties) process put in place by SOPA. The latter allows actions to be taken against the infringing site itself if the Attorney-General is unable to locate the owner of the site.

It remains to be seen what type of effect SOPA and PROTECT IP will have in the Internet landcsape in the US.  The question also beckons as to whether any other countries will follow suit with national legislation of their own in the same vein.  Being the worlds largest exporter of Intellectual Property, the United States has a vested interest in seeing IP laws around the world tighten.  Here in Canada, our copyright modernization act (currently making its way through Parliament) seems to already reflect that exported interest.  The last thing Canada needs right now is “SOPA North”.  However, since “Stephen” and “Barack” are such good buddies these days, who knows what could happen?

CIRA Changes Domain Name Dispute Resolution Policy For .CA

For well over a decade now, Canadians have become accustomed to seeing “.ca” all over the web.  The Canadian web suffix is one of the fastest growing top level domains (TLDs) in the world.  For many domain registrants, .ca serves as a branding tool to designate a site or product as being “made in Canada”.  While the web may not have national boarders (at least not the type patrolled by customs agents), the argument can be made that a .ca designation serves as a key identifier and one Canadians (and those seeking Canadian content) use often to distinguish sites registered in Canada from the rest of the internet’s vast repertoire.

Photo by Svilen Milev

.ca is a “country code top-level domain” (ccTLD) and like any TLD must be overseen by a governing body. The Canadian Internet Registration Authority (CIRA) is the organization responsible for managing the .ca domain.  Established in 1998, CIRA took over the management of the .ca domain in 2000.  Until that time, it was overseen by a volunteer organization based out of UBC (lead by John Demco, former Computing Facilities Manager at the UBC Department of Computer Science).  According to CIRA, since it’s founding, over 1.6 million .ca domain names have been registered. 

Among the many tasks CIRA carries out, probably the most important is the implementation of its Domain Name Dispute Resolution Policy (CDRP).  This policy (an off-shoot of ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP)) is CIRA’s adjudication process by which trademark owners and businesses may enforce their marks against registrants who they believe are in violation of their rights. Businesses can also use this forum to combat cyber squatting- the practice of buying up domain names only to sell them to businesses who wish to register them at a higher price. 

The changes to the CDRP include:

“Rights” and “Use”: CIRA has seen fit to do away with these definitions in the policy.  On their web site CIRA explains that these definitions are more than anything a hindrance and create “overly technical and complex requirements in terms of what rights qualify for protection”.

Codification of “confusingly similar” analysis: CIRA has opted to standardize the test utilized by its panellists when determining whether a domain name is confusingly similar with a complainants mark. They’ve opted to use the “narrow resemblance” test over the traditional , broader confusion analysis of trademark law.  This test focuses on how much the domain name in question resembles the complainants mark in “appearance, sound and suggested idea” (see CIRA web site for more detail on the test).  

Changes to Bad Faith: If a complainant wishes their action to succeed, they must show, as per paragraph 4.1 of the CDRP, that the domain name was registered in bad faith (the act defines bad faith in paragraph 3.5).  The bad faith factors listed in the policy are now non-exhaustive- meaning that complainants may attempt to show bad faith on the part of the registrant in a manner not specifically contemplated by the policy.  CIRA has also added "use for commercial gain" to the list of factors mentioned in the CDRP.

Electronic filing: CIRA is now allowing parties to file all documents electronically in addition to hard copy filing.  If one wishes to file documents in hard copy, five copies must be made and faxed where one electronic copy is sufficient.  Wouldn’t it be nice if courts would follow suit...we can dream.

A more exhaustive list of modifications made to the CDRP can be found at the above link to CIRA’s web site.

Speculation on the changes has already crept into the blogosphere.  Professor Michael Geist, while praising some of the changes as being efficacious and appropriate to the Canadian context, had at least one criticism against the modification of the bad faith factors to become non-exhaustive:

“The exhaustive list was intended to guard against the ICANN experience where dispute panellists ventured well beyond clear cases of cybersquatting by creating their own categories of bad faith. Under the new CIRA policy, the bad faith list is now non-exhaustive, opening the door to more domain name dispute claims and increasing the risk of inconsistent decisions.”

Only time will tell if CIRA’s new moves will have the effect of streamlining the domain dispute resolution process.  The standardization of the confusion test should militate in favour of that reality while the opening of the bad faith factors may (according to Geist) hinder it. Whatever, the outcome, no one can rightly accuse CIRA of inaction.  

The Arrival Of The .XXX Domain: ICANN Approves

The long awaited arrival of the .xxx suffix is upon us.  Later this year for the first time, registrants will be able to register websites with this controversial web suffix.  

.xxx is a "sponsored top level domain" (sTLD) which means that unlike "generic top level domains" (gTLD) like .com, .net or .org, it requires sponsorship by an organization representing a specific community or industry.  Existing examples include “.museum” (sponsored by the Museum Domain Management Association) or “.travel” (Tralliance Corporation).  .xxx is sponsored by the International Foundation for Online Responsibility.

photo by mikeleeorg

The Internet Corporation for Assigned Names and Numbers (ICANN) extended preliminary approval to .xxx in 2005.  Even before then it had been met with heavy opposition from both right wing and religious groups and- quite surprisingly- the pornography industry. The latter felt that .xxx may lead to the facilitation of censorship by search engines.  They also feared that the hype and noise about the domain may elicit an unwanted legislative response from American Congress or other governments. 

The Governmental Advisory Committee (GAC) has also made its opposition known.  In one of its submissions to ICANN regarding the approval process, the GAC hinted that this decision “might lead to steps taken by some governments to prohibit access to this TLD”.  This however did not stop ICANN from finally approving the application by ICM Registry LLC (the registry that operates the .xxx domain).

This presents a puzzling picture.  The oposers of .xxx are not just the conservative/religious “usual suspects”. The pornography industry itself is, in large part, against the move.  Why then is ICANN going ahead with the domain if it is opposed by the very community it is intended for?

Well, it seems that ICANN is under the impression that the application complies with all of the policy concerns outlined in the GAC communiqué such as     “taking appropriate action to restrict access to illegal and offensive content” and to “ensure the protection of intellectual property and trademark rights, personal names, country names...” The ICANN Board gives reasons for its decisions here. 

ICANN also doesn’t hesitate to point out its vast discretionary power vested by the California Corporations Code.  Section 309 of the aforementioned law states that a director of a corporation is obliged to act:

 “in good faith, in a manner such director believes to be in the best interests of the corporation and its shareholders and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.”

The ICANN Board believes that its actions are consistent with this standard and until challenged, this remains the presumption.  This law however, presents a rather high threshold in that proving bad faith on the part of the Board represents no small task. 

Otherwise, it would have to be shown that ICANN’s decision was counter to what a “normal person” would do in the same circumstances. There are loud voices on both sides of the fence on this issue. That fact alone shows that the “best interest” in this case is hotly and contentiously debated and would render any decision made by ICANN (excluding one made in bad faith) consistent with this law.

As for the divergence of opinion within the adult entertainment industry itself, ICANN chose to hide behind the 2005 decision of the Independent Review Panel (IRP) stating that it will not revisit the decision already rendered.  I suppose this can be chalked up to the “discretionary power” of ICANN. Still, it is a rather unconvincing response considering the circumstances. 

Finally, what of businesses and trademark owners outside the adult entertainment industry who wish to prevent their marks from being registered with a .xxx suffix?  ICM Registry will implement a pre-launch protection mechanism called “Sunrise B”.  In the month of September, for a period of approximately 30 days, businesses and trademark owners will be able to pre-emptively opt-out (for a fee- between $200-$300 USD) thereby protecting their trademark form being registered with a .xxx suffix.

ICANN admits that a decision like this one comports both positive and negative impacts.  It is quite sure however, that the good will outweigh the bad in this case.  They say that the negative impact will concern people opposed to the .xxx domain in the first place.  ICANN’s position is that unanimity in the community is unrealistic and waiting for such unanimity would present a barrier to progress- not an altogether unconvincing argument.

It will be interesting to see how this situation plays out.  Will the Sunrise B program be an effective deterrent to what would otherwise be an impending flood of trademark litigation? Will governments go so far as to enact legislation restricting or prohibiting access to the .xxx domain? One thing is certain. The internet is about to undergo an image change that may render its appearance far less wholesome; even if adult content is already as pervasive as ever without .xxx.