Thoughts About the Proposed Copyright Alternative Dispute Resolution Policy

Thoughts About the Proposed Copyright Alternative Dispute Resolution Policy
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A proposal from the Domain Name Association (DNA) would provide copyright owners with a new tool to fight online infringement — but the idea is, like other efforts to protect intellectual property rights on the Internet, proving controversial.

The proposed Copyright Alternative Dispute Resolution Policy is one of four parts of the DNA’s “Healthy Domains Initiative” (HDI). It is designed to:

construct a voluntary framework for copyright infringement disputes, so copyright holders could use a more efficient and cost-effective system for clear cases of copyright abuse other than going to court and registries and registrars are not forced to act as “judges” and “jurors” on copyright complaints.

The concept of the Copyright ADRP appears similar to the longstanding Uniform Domain Name Dispute Resolution Policy (UDRP). But, unlike the UDRP, which applies only to domain names, the Copyright ADRP would apply to what the DNA describes as “pervasive instances of copyright infringement.”

While many domain names are used in connection with infringing websites, the UDRP is only available when the domain name itself is identical or confusingly similar to a relevant trademark. As a result, the UDRP is often not available to copyright owners, despite obviously infringing content.

Although the Digital Millennium Copyright Act (DMCA) already is frequently invoked by copyright owners to take down infringing content, it has significant limitations. For example, many website hosting companies (especially those outside the United States) do not participate in the DMCA system, and the counter-notification process for infringers can easily be used to defeat a DMCA claim. In those cases, a copyright owner often has no choice but to accept the infringing website or incur the burdens of fighting it in court.

The Copyright ADRP is a fascinating idea that, if properly drafted and implemented, could help reduce infringing content on the Internet and would complement both the UDRP (and other domain name dispute policies) as well as the DMCA.

Still, the idea of the Copyright ADRP already is meeting resistance. A blog post at Domain Incite expresses concern that the policy could be unfairly applied “in favor of rights holders.” The Electronic Frontier Foundation reportedly has called it “ill-conceived” and “the very epitome of shadow regulation.” And the Internet Commerce Association is worried about “a chilling effect on the domain leasing and licensing business.”

Given the early stage of the proposed Copyright ADRP and the undeniable prevalence of online copyright infringement, the criticism seems premature and/or unwarranted. Like any legal enforcement mechanism, the devil will be in the details — and, at this point, the details seem to be minimal.

As of this writing, it is unclear how the DNA’s proposal would be applied other than a broad statement that it should be limited to instances “where the alleged infringement is pervasive or where the primary purpose of the domain is the dissemination of alleged infringing material.” How to define “pervasive” or “primary purpose” (let alone “infringement” — something with which the courts have long struggled) is far from clear.

Plus, numerous questions remain to be answered. Among the most important: As a voluntary dispute system (not mandated by ICANN), which registries and registrars would adopt the Copyright ADR? And who would administer it?

The answers to all of these questions are worth pursuing because, regardless of whether the DNA’s idea is workable, reducing online copyright infringement is a laudable goal that will only strengthen the usefulness of and confidence in the Internet.

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