Concerns with DMCA-style Rapid Takedown Provisions

[Danny Younger <dannyyounger@xxxxxxxxx>]

Dear members of the ICANN Board:

The revised Appendix S contains the following
language:

"Rapid Takedown

Analysis of UDRP disputes indicates that the majority
of UDRP cases involve obvious variants of well-known
trademarks. ICM Registry does not believe that the
clearest cases of abusive domain registration require
the expense and time involved in traditional UDRP
filings. Accordingly, ICM Registry will institute a
rapid takedown procedure in which a response team of
independent experts (qualified UDRP panelists) will be
retained to make determinations within 48 hours of
receipt of a short and simple statement of a claim
involving a well-known or otherwise inherently
distinctive mark and a domain name for which no
conceivable good faith basis exists.  Such
determinations will result in an immediate termination
of resolution of the domain name, but will not
prejudice either party?s election to pursue another
dispute mechanism. The claim requirements will be
modeled after the Digital Millennium
Copyright Act."

I have grave concerns regarding the advisability of
pursuing a rapid takedown approach modeled after the
DMCA.  Consider the following study of the chilling
effects of takedown notices:

"In this study, we traced the use of the Section 512
takedown process and considered how the usage patterns
we found were likely to affect expression or other
activities on the Internet. The second level of
analysis grew out of the fact that we observed a
surprisingly high incidence of flawed takedowns:

  Thirty percent of notices demanded takedown for
claims that presented an obvious question for a court
(a clear fair use argument, complaints about
uncopyrightable material, and the like); Notices to
traditional ISP?s included a substantial number of
demands to remove files from peer-to-peer networks
(which are not actually covered under the takedown
statute, and which an OSP can only honor by
terminating the target?s Internet access entirely);
and One out of 11 included significant statutory flaws
that render the notice unusable (for example, failing
to adequately identify infringing material).

In addition, we found some interesting patterns that
do not, by themselves, indicate concern, but which are
of concern when combined with the fact that one third
of the notices depended on questionable claims: Over
half?57%?of notices sent to Google to demand removal
of links in the index were sent by businesses
targeting apparent competitors; Over a third?37%?of
the notices sent to Google targeted sites apparently
outside the United States.  The specifics of our data
set may limit the ability to neatly generalize our
findings. Yet the findings are troubling, and seem to
indicate a need to further study, and perhaps revisit
entirely, the DMCA takedown process. 

http://static.chillingeffects.org/Urban-Quilter-512-summary.pdf

A Rapid Takedown procedure is an approach that should
not be pursued in a hasty fashion without further
study and without far-reaching community-wide input. 
Don't rush into this.  Please remove this clause from
the contract and allow the community the opportunity
to first debate the merits of the initiative.

Best regards,
Danny Younger


 
____________________________________________________________________________________
Sucker-punch spam with award-winning protection. 
Try the free Yahoo! Mail Beta.
http://advision.webevents.yahoo.com/mailbeta/features_spam.html