Even as Members of Congress are drafting legislation designed to help rein in websites that traffic counterfeit and pirated products, an obscure but powerful non-profit is considering actions that have the potential to blow up the problem exponentially.
The Internet Corporation for Assigned Names and Numbers (ICANN) is a California-based non-profit corporation established in 1998 to administer the assignment of domain names on the Internet worldwide. For years it has followed a steady and measured approach of launching new "generic Top Level Domains" or "gTLDs" only as need is demonstrated for them, and as the capacity of ICANN to enforce its contracts with registries for such gTLDs allows. A gTLD is what appears to the right of the "dot” in an internet address - for instance .com, .net, .org, .biz. There are currently 21 gTLDs approved.
Over the last several years, ICANN has been working to infinitely expand the number of gTLDs available. Should these steps be implemented by ICANN, it would be possible to register any string of characters as a gTLD. Kurt Pritz, ICANN’s Senior Vice President, stated at a hearing before the House Judiciary Subcommittee on Intellectual Property, Competition and the Internet today that should the ICANN board approve this decision at their next meeting in June, he anticipates launching at least 200 new gTLDs - ten times the amount ICANN has approved over the last 13 years of its operation – over the next two years. There would be no limit on the number of gTLDs that could be launched.
Trademark owners have almost uniformly opposed this unprecedented and unneeded expansion, fearing that it will increase the potential for fraud on consumers. The worry is that unscrupulous actors will use the expanded gTLD space to register domain names using well known trademarks, or variations on such trademarks, and that those sites will be used to defraud consumers, and harm the value of the infringed upon brand.
Mei-Lan Stark, Senior Vice President of Fox Entertainment Group, appearing on behalf of the International Trademark Association (INTA), testified to problems her company has already experienced due to abusive domain name registrations – including the registration by third parties of Fox trademarks and channel identifiers to misdirect consumers searching for a Fox channel to pornographic websites. Such problems can only be expected to increase if the gTLD expansion proposed by ICANN occurs without proper constraints.
This is an issue that should raise concerns among artists, creators, and other copyright owners as well. The problems with enforcing against abusive registrations under the current system of gTLDs are well documented. But, while Congress is debating how to tackle the thorny problem of rogue websites, ICANN is proposing to add a new thicket of problems for copyright owners.
Should the proposal be carried forth by ICANN, the rogue websites problem could increase dramatically:
First, more Internet space would be available to rogue website operators for new abusive registrations.
And, such rogue website operators would be able to add another tool to their arsenal when trying to mislead consumers. Namely, a legitimate looking gTLD, potentially associated with a well known brand, or with an artistic discipline (think .movies, .art, .music, .games).
Moreover, since as a non-governmental organization, ICANN operates pursuant to contractual arrangements, rather than by imposing laws or regulations, the ability to identify the operators of rogue websites, and to ensure they act appropriately will rest with the private registries chartered by ICANN. Steve Metalitz, representing the Coalition for Online Accountability, eloquently outlined the risks this poses at today’s hearing:
Because there is no obligation on registries for new gTLDs to confirm the accuracy of “who is” data about the entities registering domain names, or to take action to discourage abusive registrations, rogue website operators can lie about their identity, or use a proxy service to register a site, with little or no risk of enforcement. One out of every five websites is currently registered by a proxy service, meaning that the identity of the owner of the site is hidden. While there are certainly legitimate reasons for using proxy services, experience and data demonstrate that such registrations are particularly attractive to spammers, copyright thieves, fraudsters and other wrongdoers. Further, as the number of gTLDs expands many more registries will operate outside the United States, putting them even further out of reach should they harbor rogue website registrants.
While members of the Subcommittee appeared troubled by the many new risks for abuse the proposed gTLD expansion will pose, and urged ICANN to slow down the approval process, and impose additional protections to ensure that abusive registrations do not proliferate, it remains to be seen whether ICANN will proceed as planned.