[GNSO-RPM-WG] ICE domain name seizures -- potential source of data for RPM PDP?

Wed Jan 2 19:18:59 UTC 2019

Mitch:

(Speaking in a non-Chair, personal capacity) --With all respect, even if staff, funding and time were available to do such massive analysis (all of which are likely major stumbling blocks), assuming that the list of one million-plus domains could be aggregated from multiple law enforcement agencies (another big question mark), what useful comparison could be provided?

Let’s say that one hundred thousand (10%) of the one million domains had a domain name that was identical or confusingly similar to a trademark, and the website was being used to distribute counterfeit goods and/or infringed copyrighted material related to the trademark owners (bad faith use for UDRP or URS purposes). What useful conclusions could be drawn from such knowledge as regards the operation of and potential changes to ICANN RPMs, which are either preventative in nature or non-judicial remedies to be utilized by trademark owners, and do not require criminal conduct as a predicate?

Thanks for any further explanation,

Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: GNSO-RPM-WG [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Mitch Stoltz
Sent: Wednesday, January 02, 2019 2:02 PM
To: gnso-rpm-wg at icann.org
Subject: [EXTERNAL] Re: [GNSO-RPM-WG] ICE domain name seizures -- potential source of data for RPM PDP?

I disagree—more information about these seizures could absolutely inform our work. It would be useful to know what percentage of those million-plus domain names were seized for reasons relating to trademark infringement in the domain name itself versus some objectionable content in the website, and whether the claims actually relate to trademark or copyright. Knowing whether ICE seizures are in fact addressing some of the same conduct as the ICANN RPMs, and what if any due process is being afforded, will provide an important basis of comparison, because the RPMs don't operate in a vacuum.

Mitch Stoltz
Senior Staff Attorney, EFF | 415-436-9333 x142
https://www.eff.org/donate | https://act.eff.org/

On 1/2/19 9:58 AM, Jonathan Frost via GNSO-RPM-WG wrote:

   I think Phil has a good point here.  Without a meaningful way to distinguish why exactly each domain was seized, the data would not be very useful beyond the mere knowledge that local governments are enforcing local IP laws.

   Jonathan

   On Wed, Jan 2, 2019 at 12:47 PM Corwin, Philip via GNSO-RPM-WG <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>> wrote:

      Aside from the daunting challenge of analyzing a list of more than one million domain names, if such a list could be assembled I'm not sure it could inform our work in any meaningful way.

      The new gTLD RPMs are focused on preventing and responding to a very narrow type of trademark infringement -- cybersquatting where the domain name is identical or confusingly similar to a trademark, where the registrant has no legitimate interest in the DN and the domain is being used in bad faith to infringe trademark.

      While some of the seized domains referenced in the ICE press release may have met that test, many (likely the majority) probably did not, as the release makes clear that the primary focus was not the domain name but the sale/distribution of counterfeit goods and copyright-infringing material --

                      More than 1 million copyright-infringing website domain names selling counterfeit automotive parts, electrical components,      personal care items and other fake goods were criminally and civilly          seized in the past year through the combined efforts of law-      enforcement agencies across the world, high-profile industry                 representatives and anti-counterfeiting associations... The IPR     Center, which stands at the forefront of the U.S. government's           response to IP theft, worked directly with key international law-  enforcement authorities and industry organizations representing the electronics sector, luxury brand-name designers, film and                 entertainment and several entities specializing in apparel and      accessories through the major enforcement effort.... Investigations led by HSI resulted in the removal of copyright-infringing websites             that sold counterfeit airbags and integrated sensors, both       co
       mmodities that present a potential safety hazard. An investigation       based in Louisiana led to the seizure of five website domain names -      including Chinaseatbelt.com; Airbagpart.com; Chinasafetybelt.com;     Fareurope.com; and Far-europe.com - involved in the sale of fake              automotive parts. A joint case between HSI and Department of            Defense investigative agencies resulted in the removal of                 PRBlogics.com, a copyright-infringing website offering counterfeit             integrated sensors.

      So the ICANN RPMs are focused on the "apples" of a very specific and narrow type of TM infringement that looks at domain content for evidence of bad faith use, while the government domain seizures do not focus on the domain name but the "oranges" use of the website to distribute counterfeit goods or infringed copyrighted content.

      Aside from that, assembling the domain names would likely be impossible, given that the release makes clear that the million-plus seizures is a cumulative annual tally based on actions taken by law enforcement agencies around the world.

      Finally, as the Techdirt blog states, the release is somewhat confusing in regard to what IP infringement was actually involved---

      Still, it seems notable that in late November, ICE proudly announced that it had seized over a million websites, though frankly, the press release raises a hell of a lot more questions than it answers. First off, it appears that ICE has no clue that copyright and trademark are entirely different things.

      More than 1 million copyright-infringing website domain names selling counterfeit automotive parts, electrical components, personal care items and other fake goods were criminally and civilly seized in the past year through the combined efforts of law-enforcement agencies across the world, high-profile industry representatives and anti-counterfeiting associations.

      "Copyright infringing website domain names" already is a weird description (were the URLs themselves infringing?) but it's made even weirder by saying that these sites were seized because they were selling counterfeits. Counterfeiting is a trademark issue, not a copyright one. Those laws are entirely different.

      In conclusion, unless we are contemplating expansion of the ICANN RPMs beyond a narrow form of cybersquatting to cover sale of counterfeit goods and websites infringing copyright (a proposition for which consensus could not likely be achieved), even if the million-plus domain names could be obtained their relationship to our work seems tangential at best.

      Philip S. Corwin

      Policy Counsel

      VeriSign, Inc.

      12061 Bluemont Way

      Reston, VA 20190

      703-948-4648/Direct

      571-342-7489/Cell

      "Luck is the residue of design" -- Branch Rickey

      -----Original Message-----
      From: GNSO-RPM-WG [mailto:gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org>] On Behalf Of George Kirikos
      Sent: Wednesday, January 02, 2019 11:48 AM
      To: gnso-rpm-wg <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>
      Subject: [EXTERNAL] [GNSO-RPM-WG] ICE domain name seizures -- potential source of data for RPM PDP?

      Hi folks,

      Happy New Year.

      There was news about ICE seizing over 1 million domain names, see:

      https://www.ice.gov/news/releases/over-million-websites-seized-global-operation

      https://www.techdirt.com/articles/20181213/18030341224/ice-seizes-over-1-million-websites-with-no-due-process-apparently-unaware-that-copyright-trademark-are-different.shtml

      I was curious whether anyone (maybe a registrar, registry, or TM holders who were involved, i.e. the "industry partners") has and can share the complete list of domain names that were seized, as that might be a potential source of data for our work.

      Sincerely,

      George Kirikos

      416-588-0269

      http://www.leap.com/

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