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Big content to ICANN: make it easier for us to challenge domain suffixes


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A small battalion of music copyright trade associations have written to the global agency in charge of domains to express their displeasure with the group's latest Draft Application Guidebook for generic Top-Level Domains (gLTDs). Those are the domain suffixes that we've all come to know and possibly love, such as .com, .org, and .info.

"Our overriding concern is to ensure that any music themed gTLD is used productively and responsibly, and not as a means to facilitate copyright or trademark infringement," wrote Victoria Scheckler, Deputy General Council of the Recording Industry of America, to the Internet Corporation for Assigned Names and Numbers (ICANN) on January 5.

The latest draft guidebook (or "DAG" as the letter acronyms it) has "raised the bar dramatically for community objections," creating an "ultra high standard" for them. Thus, "it seems unlikely that any community objection will prevail," Scheckler insists. "Under the current proposed standard, we fear that we will have no realistic ability to object if a pirate chooses to hijack a music themed gTLD to enable wide scale copyright infringement of our works."

Then comes this barely veiled threat: "We strongly urge you to take these concerns seriously," the letter warns. "We prefer a practical solution to these issues, and hope to avoid the need to escalate the issue further."

Signed: RIAA, the National Academy of Recording Arts and Sciences, the Songwriters Guild of America, and 12 other groups.

Four grounds

What has ICANN proposed that so offends these organizations? Some background on the guidebook itself is in order. The document offers rules for how to apply for a gTLD, but it also explains how to object to another group's application for a gTLD like .music or .songs or .movies or such (these don't exist yet but there's talk of them).

The DAG is still a work-in progress, with various versions being vetted. The May 28, 2010 draft offered four grounds for objection.

1. String Confusion. The sought after gTLD is "confusingly similar to an existing one, or one making its way through the application stage.

2. Legal Rights. The applied-gTLD somehow "infringes" on the rights of the protesting group.

3. Morality and Public Order. The proposed gTLD is "contrary to generally accepted legal norms of morality." One guesses that the gTLDs '.extortion' or '.kickstraydogs' would fall under this rubric.

4. Community Objection. "There is substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted." See '.lawyerssuck' or '.justinbieberfansmustdie.'

And as they are stipulated in legal disputes, the May edition offered standards for standing to object to a proposed gTLD. Here they are:

  • String confusion: Existing TLD operator or gTLD applicant in current round
  • Legal rights: Rightsholders
  • Morality and Public Order: No limitations on who may file—however, subject to a 'quick look' designed for early conclusion of frivolous and/or abusive objections
  • Community: Established institution associated with a clearly delineated community

Habeus detriment

The guidebook also included guidelines for "detriment"—that is, as in various kinds of lawsuits, the protestor has to show that she would really be harmed by this proposed gTLD. In the May draft the detriment section was introduced as follows:

"Detriment—The objector must prove that there is a likelihood of detriment to the rights or legitimate interests of its associated community."

But in the newer November draft, to which RIAA refers, another word, phrase, and sentence have been added, which we have italicized:

"The objector must prove that the application creates a likelihood of
detriment to the rights or legitimate interests of its associated community
and the broader Internet community.
An allegation of detriment that consists only of the applicant being delegated the string instead of the objector will not be sufficient for a finding of material detriment.

This is the addition to which RIAA particularly objects. "We do not believe this is appropriate, or in the interests of the global community," Scheckler's letter insists, "and respectfully request that the 'material detriment' standard revert back to the prior standard, and that the requirement to show material detriment to the broader Internet community be removed."

It seems odd to us that these signers, who ceaselessly characterize their calls for tougher intellectual property laws as crusades on behalf of consumers, would suddenly retreat from the challenge posed here. Their grievance might leave some with the impression that what RIAA and company really want is to dominate the rollout of music oriented gTLDs to discourage independent content sharing sites, even if they include a system for filtering out infringing materials, as do YouTube and RapidShare.

"We strongly urge you to take these concerns seriously," RIAA's letter concludes, "and expeditiously implement appropriate changes to the DAG to address these critical concerns."

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