For many years, major U.S. entertainment companies have been trying to gain the power to make websites disappear from the Internet at their say-so. The Internet blacklist bills SOPA and PIPA were part of that strategy, along with the Department of Homeland Security’s project of seizing websites that someone accused of copyright infringement. Hollywood’s quest for more censorship power was on display again today at a House of Representatives committee hearing that was supposed to be discussing reforms at ICANN, the nonprofit organization that oversees the Internet’s domain name system. Amidst a discussion of new top-level domain names (such as “.sucks”), a lawyer representing the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and other groups told the House Judiciary Committee’s Internet subcommittee that ICANN should force the companies that register domain names to suspend domains based on accusations of copyright infringement.
If this sounds familiar, that’s probably because it’s exactly the sort of system that the disastrous SOPA bill would have created—one where entire websites can be forced to go dark, without a day in court, because some material on the site is accused of infringing a copyright. We wrote about this strategy in March, when it appeared in the US Trade Representative’s “Notorious Markets List,” also at Hollywood’s request.
This new strategy to obtain censorship power is based on vague language in the agreements that ICANN made with the companies selling names in new top-level domains like .website, .ninja, and .biz. The agreements say that domain name registrars “shall take reasonable and prompt steps to investigate and respond appropriately to any reports of abuse.” The agreements don’t mention copyright, or require domain registrars to disable a domain without a court order. But that didn’t stop Steve Metalitz, the lawyer for a coalition that includes MPAA and RIAA, from arguing that “reports of abuse that are submitted to registrars by right-holders” should lead to “investigation” and “redress.” Of course, a registrar like Tucows or Namecheap has no control over the contents of websites—they simply register domain names. From a technical standpoint, the only “redress” a registrar can offer to a copyright holder such as a movie studio is to suspend a site’s domain name, making the entire site inaccessible to most visitors.
On top of those problems, using the DNS system to enforce copyright (or other politically-driven speech regulations like libel, sedition, or blasphemy) raises reliability and security problems, and risks splitting a global system into national or regional fiefs.
As EFF and many other organizations pointed out during the SOPA debate, censoring entire websites based on mere accusations of copyright infringement is deeply problematic. Laws like Section 512 of the Digital Millennium Copyright Act and Section 230 of the Communications Decency Act protect intermediaries and platforms for speech against liability for the content uploaded by their users. These laws embody a tradition of free speech protections that require a strong legal justification, and a fair process, before speech can be suppressed by fiat.
Copyright was not supposed to be the focus of today’s hearing on ICANN. EFF submitted a letter to the committee pointing out the dangers of using ICANN as a forum for entertainment companies’ website-blocking aspirations. Fortunately, Mr. Metalitz’s suggestion of SOPA-style blocking didn’t pass unnoticed. Representatives Zoe Lofgren and Blake Farenthold both called it out for the bad idea it is.
We’ve never believed that the defeat of SOPA ended the MPAA and RIAA’s ambitions for a quick and easy way to censor websites without the inconvenience of a fair legal process. That’s why we’ll continue to look for new variants of this bad idea no matter where they appear, and fight to stop them becoming reality.
