I first outline a brief history of free file-sharing technology, then draw some general and domain name lessons, then outline the what, how, and why that make your activism effective and necessary.

Music Download Background

Napster was the first online music file-sharing service and was created by Shawn Fanning in 1999 while he was attending Northeastern University in Boston. The service, operating under the domain name napster.com, allowed people to easily share MP3 format music files with each other, thus leading to the music industry's accusations of massive copyright violations. Grokster, a similar technology, was created in 2001. However, the original Napster service and Grokster were shut down in 2002 and 2005, respectively, by court orders resulting from music industry lawsuits.

Sensing the vulnerability of Napster's centralized technology, Niklas Zennström, Janus Friis, and Priit Kasesalu (the team that later created Skype and Joost) launched Kazaa in March 2001. With Kazaa, there is no central server: Tom in Berkeley directly accesses Jose's computer in Mexico for a Bob Marley song. Within twelve months, more than 250 million copies of Kazaa had been downloaded. Kazaa's revenue, however, came from centralized selling of ad space on its downloaded software. Thus, although there were no centralized computers to host the songs, the ad revenue was centralized.

With legal pressure from the music industry, Kazaa, based in the Netherlands, was sold to a company based on the South Pacific island of Vanatu—beyond the reach of the U.S. and European legal systems. After Kazaa was chased out of Vanatu, an unknown hacker erased the parts that served ads and distributed the new software version online as Kazaa Lite (also known as K+), thus developing an even more decentralized technology. Now millions began downloading K+. A similar free music-sharing software is eMule, a descendant of eDonkey that is more decentralized and open source than anything anyone in the music industry had seen.

Reflecting the general hunger for privacy and secrecy, Share is the name for a closed-source P2P application being developed in Japan by an anonymous author.

General Lessons

1. Because Napster and Grokster were centralized, legal action against them could succeed. A decentralized system is far less vulnerable.
2. Fighting Napster only benefited lawyers, as free download continues.
3. Becoming decentralized and going underground diminish return to software developers but increase the benefits to users/violators.

Domain Name Industry

The domain name industry is decentralized and atomic in that anyone from anywhere in the world can register a domain name, keep the ownershp name and address private, and host it from a country where the U.S. and European legal systems don't apply. Thus, legal action will only drive domain owners further underground.

By shifting underground, domain name owners would:

1. Become hard to track. A cooperative IP regime, on the other hand, reduces incentives to go underground and thereby makes content and brand violations easier to control. Domain owners are more likely to cooperate with a trusted third-party monetization entity than with brand owners.
2. Increase domain tasting of brand names to cover any additional cost from moving further underground. On the other hand, under a cooperative IP regime a cutoff date can be assigned to eligible domain names, reducing any incentive to register brand domain names under the umbrella of a cooperative regime.

What can be done?

The domain name industry should get the message out to Internet users and brand owners that:

1. Indiscriminate legal action exasperates the problems associated with the use of brands in domain names.
2. A solution cannot come only from the side of the domain name industry; a cooperative solution is imperative.

The domain name industry is serious about fighting illegal use of brands in domain names.

How should our industry react?

1. Initiate media campaigns.
2. Openly discuss solutions in domain name conferences, as they are also attended by the media and brand owners.
3. Lobby Congress through the Internet Commerce Association (ICA) and domainer activism.
4. Discuss the problem and possible solutions in domain name forums and other relevant forums.
5. Take action against current monetizers that continue sponsoring obvious domain name violations.

Why Take Action?

Without action:

1. Industry can face tough unwarranted legal restrictions such as the Anti-Phishing Consumer Protection Act of 2008 (APCPA).
2. Domain name values would drop.
3. Internet user experience is diminished for which our industry is blamed.

Nevertheless, action will send a clear signal to registrants under future TLDs that the industry will not tolerate such bad behavior.

Concluding Remarks

Indiscriminate legal action by brand owners against those who register domain names that incorporate their brands can backfire by driving further underground domain name registration and Web site-hosting.

Our industry can and should take proactive measures to limit or prevent such consequences. A cooperative IP regime between brand and domain owners is a viable solution.

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More under: Domain Names, Law

In a June court ruling, domainer Navigation Catalyst and registrar Basic Fusion lost a cybersquatting lawsuit to Verizon.

Verizon California, Inc. v. Navigation Catalyst Systems, Inc. [PDF], 2008 WL 2651163 (C.D. Cal. June 30, 2008). The Justia page. A page with some of the early filings.

This is an extremely interesting and potentially precedent-setting case regarding domaining and domain name tasting. The court condemns both practices, leading to a preliminary injunction against the domainer and its registrar based on the Anti-Cybersquatting Consumer Protection Act (ACPA). As far as I can recall, this is the first time that a domainer has lost an ACPA lawsuit in court, and it provides an important data point confirming that domaining can be cybersquatting (a previously unresolved issue). I also believe that this is the first time a domain name registrar has lost an ACPA lawsuit. Although the court wasn't asked to assess damages (it was just an injunction request), it's clear from the strongly worded opinion that Verizon will get paid if the case gets that far. As a result, this is a major loss for domainers and might very well force them to change their practices.

The defendants are Navigation Catalyst, a domainer, and Basic Fusion, its registrar. Navigation Catalyst engaged in some common domainer practices, including:

• high volume automated domain name tasting. Many of the registered domains have nothing to do with anyone's trademark, but some were typographical error versions of Verizon's trademarks (allegedly, nearly 1400 were variations of Verizon's trademarks)
• trademark "scrubbing" of domain names during the tasting period (both an automated blacklist and a manual review)
• disabling ads on any challenged domains and offering to transfer those domain names to the trademark owner

Despite the scrubbing, Navigation Catalyst registered and kept 126 domain names that Verizon alleges infringe its trademark. Navigation Catalyst also tasted nearly 1300 other challenged domains, and as the court points out, made some money from those domains during the tasting period.

Navigation Catalyst's main defense is that it merely reserved the domains during the tasting period instead of "registering" them (the ACPA statutory requirement) because they hadn't paid for the domains prior to the end of the grace period. Not surprisingly, the court is completely unimpressed with this sophistry.

Further, the court determines that domain tasting is a bad faith intent to profit under the ACPA:

It is clear that their intent was to profit from the poor typing abilities of consumers trying to reach Plaintiffs' sites: what other value could there be in a name like ve3rizon.com? Further, the sites associated with these names often contained links to products directly competitive with Plaintiffs' cellphone and internet businesses, potentially diverting consumers who would otherwise have purchased goods or services from Plaintiffs away from Plaintiffs.

Finally, the defendants tried to argue that Verizon had unclean hands because of Verizon's monetization of wildcard traffic in its FIOS service. Despite some pretty apparent duplicity on Verizon's part, this argument also fell on deaf ears.

While this is a big loss for the domainer, it's a shocking ruling against the registrar. After all, the ACPA specifically limits injunctions against domain name registrars (see 15 USC 1114(2)(d)(i)(II)), and the court did not discuss this section at all or otherwise why an injunction against the registrar was appropriate. I suspect the registrar should be able to get the court to clarify or reconsider its ruling if it asks.

It will be interesting to see how this ruling affects the domainer industry. There is absolutely no good news for them in this ruling. This court rejected the standard risk-management that domainers claim protect them from cybersquatting liability. Further, the big win will only encourage Verizon—already one of the most aggressive plaintiffs against domainers—to keep suing, and it might spur other trademark owners to join the party. Although a single ruling like this often doesn't change an industry overnight, I wouldn't be surprised if we look back in a couple of years and point to this ruling as the beginning of the end of standard domaining practices circa 2007-08.

Intellectual Property Rights Act of 2008:

Counterfeit Chic: Senate Considers Enforcement of IP Rights Act of 2008:

Among the bill's additions to existing law are the following:

Authorization of the Attorney General to bring civil, not just criminal actions -- a potential benefit to intellectual property rights holders who now have to file such lawsuits on their own dime;

Enhanced penalties, including doubled statutory damages for counterfeiting (to $1,000 to $200,000 for use of a fake trademark and to $2m for doing so willfully);

New forfeiture provisions for property used to violate intellectual property rights -- like that car used to transport counterfeit handbags or a computer used to download music;

More enforcement resources and personnel at the local, national, and international levels, including placement of IP law enforcement coordinators in hotspots overseas;

and

A federal Intellectual Property Enforcement Coordinator, a.k.a. a Copyright Czar.

I’m traveling to Baltimore tomorrow, where I’ll be speaking later this week at UMD, one of the few law schools that can claim to be older than my own. The occasion is this year’s CALI Conference for Law School Computing, and I’ll be delivering an updated version of my talk on the open access movement.

As it turns out, I’ll also be delivering an unexpected bit of good news. The open-access project I blogged about here last October has yielded some impressive results. The project involved scanning and proofreading the House Judiciary Committee’s Report on the landmark Copyright Act of 1976. To my knowledge, the House Report has never been freely available online — a keenly felt omission, given how frequently United States courts in copyright cases rely on the Report as an aid to construction of the (frequently unilluminating) statutory text.

That problem has now been remedied.

Working in irregular bursts over the last eight months, volunteers at the English-language Wikisource project (a sister site of the much better known Wikipedia encyclopedia) have proofread all 370 page scans from the original House report, and the results have been stitched together to form a single document: Copyright Law Revision (House Report No. 94-1476). As the accompanying color-coded chart reveals, most pages of the report have been proofread by at least two different users, and the rest should be finished within a few weeks if current trends continue.

Here are just a few reasons why the Wikisource version of the House Report is the best now available anywhere.

• It’s free. Like all U.S. government works, the text is in the public domain. And Wikisource, unlike proprietary database vendors, doesn’t purport to limit your freedom to copy or reuse the public-domain texts that are hosted on the site. If you look up the exact same report on Westlaw, for instance, you’ll find this rather forbidding warning:
  
  

  ©2008 Thomson/West. Copyright is not claimed as to any part of the original work prepared by a U.S. government officer or employee as part of that person’s official duties. All rights reserved. No part of a Westlaw transmission may be copied, downloaded, stored in a retrieval system, further transmitted, or otherwise reproduced, stored, disseminated, transferred, or used, in any form or by any means, except as permitted under the terms of the Subscriber Agreement wherein you obtained access or with prior written permission. Each reproduction of any part of a Westlaw transmission must contain notice of Thomson/West’s copyright. Westlaw, WIN, and KeyCite are trademarks registered in the U.S Patent and Trademark Office. WIN Natural Language is protected by U.S. Patent Nos. 5,265,065; 5,418,948; and 5,488,725.

  
  

  Where Thomson/West gets off telling me what I can and can’t do with information they don’t own is beyond me. By drawing the text of the House Report from the original U.S. Government publication, however, Wikisource’s version avoids entanglement with similarly overreaching proprietary claims.



• It’s complete. Other online versions of the Report, as well as most hard-copy reprints (e.g., 1976 U.S.C.C.A.N. 5659), omit certain portions. Typically, they exclude the text of the legislation (pp. 1–46 of the Report) as well as an especially lengthy, complicated three-column table that offers a side-by-side comparison of (1) the version of the bill that passed the Senate in 1975, (2) the text of the House’s amended version, and (3) the corresponding provisions, if any, of the Copyright Act of 1909 (pp. 186–358 of the Report). Wikisource, in keeping with its general editorial philosophy, reproduces the complete text in its entirety; the site’s editors don’t substitute their own judgments about which portions of the document will be useful to you.


• It’s pinpoint-hyperlink-able (I’m sure I’m overlooking a more technologically correct way of saying that). Did you spot those hyperlinks in the preceding paragraph? Mitigating the potential unwieldiness of posting a 370-page document as a single Web page is the fact that anchor elements are included to take you directly to any page within the document. So if you want to jump straight to the Committee’s discussion of fair use, for example, you can.


• It’s (optionally) annotated. Wikisource reproduces original texts as published, warts and all. But the architecture of the site makes it easy to offer an alternative annotated version of the text where errors are marked and corrections offered.

Assisting with the creation of the online version of the House Report has been an educational experience, and I expect to have more to say about the pros and cons after my CALI talk. For now, though, I’m pleased just to report that an important and influential primary reference source in copyright law has, three decades after the fact, at last become freely available online.

The "whois" system for domain names is the single greatest violation
of privacy rights on the internet.

A reasonable cure has been put forth that would require only that domain name registrants designate a contact, who could be an agent, to receive communications pertaining to the technical operation of the domain.  This is not unlike the way that corporations keep much of their structure private by designating an agent for the receipt of legal notices.  ICANN and Verisign both do this.

The industry that protects intellectual property (not to be confused with the industry that creates intellectual property) does not like this proposal; they would prefer that every person go naked on the internet, with their names and numbers tattooed to their chests, and live in glass houses.

The trademark industry wants domain name registrants to reveal their information, and that of their families and children, to the anonymous predators of the world on a 24x7 basis.

The trademark industry will allow but one exception - if a person claims sanctuary on the basis of "special circumstance".  What this means is that a few shelters for bettered women might be allowed to refrain from publishing their contact information.

This "special circumstances" proposal is contrary to one of the most fundamental tenets of modern society, that a person is presumed innocent until proven guilty.  The "special circumstances" proposal is nothing short of a systematic conclusion that you and I and every other domain name registrant is to be presumed to be a thief and unworthy of privacy.  The burden is placed not only on us to rebut that presumption but to do so in advance even of an accusation.

We are being told in no uncertain terms that our privacy, and that of our families and children, is worth less than a trademark.

The "special circumstances" shoe should be put on the other foot.  If a trademark owner wants to penetrate the privacy of the Whois data that owner should be obligated to make a specific accusation, saying on a permanent public record, what rights of that owner are being violated by the accused domain name owner and what facts exist to support that accusation.

In other words, the trademark owner should be required to demonstate, with concrete accusations backed by concrete facts, that special circumstances exist that are sufficient to violate a person's right to privacy.

We have seen how the music and movie vigilantes, the RIAA and MPOA, have run amok making groundless accusations against thousands of innocent people.  These are the law-firm office mates of the trademark people who want to violate our privacy in our domain names.  There is much reason to be skeptical of their intentions.