Is it any surprise that a leading censor in the US stems from Hollywood? A bevy of entertainment-centric organizations including the Motion Picture Association of America and Recording Industry Association of America are benefiting from pressures enacted by the US Trade Representative (USTR). Previously, the biggest censorship pressure came from the USTR’s “Notorious Markets List”, which lists each year intellectual property infringement that’s allegedly notorious and leads to “substantial copyright piracy and trademark counterfeiting.” For the most part, the list featured markets that offered counterfeit good trading.
However, in 2014 there were 21 new websites listed. Usually, websites were for streaming/torrents, but the most recent list debuted domain name registrars. The new section, “New Issue Focus: Domain Name Registrars”, is included because according to the USTR there are a few shady registrars “playing a role in supporting counterfeiting and piracy online.” The USTR continues, “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…One respondent identified several registrars that have apparently refused requests to lock or suspect domain names used to sell suspected and counterfeit pharmaceuticals.”
ICANN Haz Issues
ICANN requires that action be taken, including suspending a domain, if it’s found that illegal activity is taking place—or at least that’s what USTR suggests in the report. However, that’s not actually an obligation of ICANN. However, a number of entertainment organizations benefitting from USTR have requested that ICANN (which manages the worldwide domain name system or DNS) to take such action. Thus far, ICANN has not officially responded to these requests.
Legally, domain registrars have no legal obligation to answer complaints from a third party. A website cannot be forced down except by court order. Critics of UTSR say that facts are being skewed and exaggerated. However, judging by how USTR has reacted to complaints from entertainment industry organization, USTR seems to be taking claims as fact—it has even “shamed” some domains after receiving third party complaints without verifying the facts.
Bullied Into Suspension
Why is USTR and entertainment organizations getting away with this? Likely because some registrars suspend domains when they get complaints even though they have no legal obligation to do so. However, the registration agreement does not require such action. It’s important to bear in mind there are a number of Acts in place, such as the Communication Decency Act, which ensures that some intermediaries (domains) aren’t necessarily responsible for content that users may upload.
Should a registrar receive a complaint by USTR or anyone else, it’s often best to do nothing or create a public statement addressing discrepancy via the help of an attorney. Unless there’s a court order to suspend a website, it’s never a requirement. Freedom of speech doesn’t always come that freely, and bending to the whims of the entertainment industry or any non-court entity sets a poor precedence for all registrars.