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Date/Time: Sun, November 5, 2000 at 11:06 PM GMT
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Subject: Comments on New TLDs -- Motion Picture Association

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COMMENTS OF THE MOTION PICTURE ASSOCIATION OF AMERICA
ON
APPLICATIONS OF THOSE SEEKING TO SPONSOR OR OPERATE NEW TLDS
November 5, 2000

The Motion Picture Association of America (MPAA) appreciates this opportunity to provide comments on the applications received by ICANN in response to its call for proposals by those seeking to sponsor or operate one or more new top level domains (TLDs).

MPAA supports the aim of introducing a limited number of new TLDs in a “measured and responsible fashion” as a “proof of concept.”  Consistent with the goals of maintaining the stability of the Internet and enhancing the utility of the DNS, every proposal to operate a new TLD must be measured carefully against criteria designed to ensure that those rights and expectations that exist in the offline world are preserved and upheld in the digital Internet environment.  While the abbreviated period of time afforded for public review and comment on the proposed TLD applications precludes a detailed and comprehensive review of each application, MPAA reaffirms here the minimum safeguards that should be reflected in any successful application, as set forth in earlier submissions by the Intellectual Property and Business Constituencies and the Copyright Coalition on Domain Names.  These include provision of adequate registration and contact data requirements, free and unfettered web-based Whois access to complete and up-to-date contact data, adequate and efficient dispute resolution mechanisms that extend to enforcement of registration agreements and any relevant charter restrictions, appropriate trademark protections, and meaningful compliance mechanisms to ensure implementation of all the above.  While the mechanisms for preserving and upholding such rights may differ in the context of different domains, all TLDs must include adequate minimum safeguards to prevent abuses of the DNS in furtherance of infringements of the rights of others, particularly in the case of new noncommercial or personal domains.  Finally, MPAA wishes to provide more detailed comments with respect to the application of Name.Space, Inc., and in particular with respect to proposed sector-specific domains relating to audiovisual entertainment and the registration of film titles as domain names.

I. INTRODUCTION.

MPAA is a trade association representing major producers and distributors of theatrical motion pictures, home video material and television programs.  MPAA members include:  Buena Vista Pictures Distribution, Inc.; Metro-Goldwyn-Mayer Studios, Inc., Paramount Pictures Corporation; Sony Pictures Entertainment, Inc.; Twentieth Century Fox Film Corporation; Universal Studios, Inc.; and Warner Bros. MPAA member companies are among the world’s leaders in implementing aggressive electronic commerce activities and are actively pursuing new and innovative business models in order to tap the vast potential of digital media and worldwide distribution networks, like the Internet.

The MPAA is an active member of the Intellectual Property and Business Constituencies of the ICANN Domain Name Supporting Organization (DNSO).  In light of the abbreviated public comment period afforded to review and respond to the 47 lengthy and detailed applications, the MPAA has focused its efforts primarily on participating in the broader review of applications by those organizations.  The MPAA thus joins in and reiterates its full endorsement of the comments submitted by the Intellectual Property Constituency and the Business Constituency.  In the instant comments, the MPAA wishes to summarize and re-enforce the policies it believes should be reflected by any successful application, including proposals for new noncommercial or personal TLDs, and to provide more specific comments with respect to the application submitted by Name.Space, Inc. for some 100-plus different TLD strings.

II. THREE-WEEK PUBLIC COMMENT PERIOD IS INSUFFICIENT FOR ADEQUATE REVIEW OF PROPOSALS.

The MPAA wishes to underscore at the outset its disappointment in the abbreviated time frame for public comment and the resultant lack of opportunity for substantive review and public input with respect to the various TLD proposals.  ICANN posted the majority of the 47 applications it received for review with a deadline for public comment less than two weeks away.  Even then, several applications remained inaccessible.  Each of these applications is highly detailed and, taken together, constitute thousands of pages of material. 

The introduction of new TLDs into the DNS is an issue that has commanded years of discussion and extensive debate within the Internet community, the U.S. Department of Commerce, the DNSO, the Names Council, and the ICANN Board.  The review of the substantive proposals to implement the introduction of such TLDs merits very serious consideration.  While ICANN is to be commended for extending the deadline for comments by nine days, these proposals merit far greater public attention and scrutiny than a few short weeks affords. 

The lack of real substantive review by the Internet community of many of these applications should be taken into account by the ICANN Board and staff in evaluating proposals and in determining which and how many new TLDs can and should be introduced consistent with the stated purpose of effectuating a “proof of concept” while promoting orderly registrations, minimizing infringements of intellectual property, and maintaining the stability of the DNS.  In the view of the MPAA, the short time frame for evaluation of proposals weighs in favor of rolling out a very limited number of new TLDs at this stage and of serious consideration being afforded only to those applications that provide detailed and adequate proposals for meeting these stated objectives.

III.  MINIMUM STANDARDS FOR SUCCESSFUL TLD APPLICANTS.

The MPAA reaffirms its support for the general statement submitted jointly by the Intellectual Property and Business Constituencies setting forth minimum standards for successful TLD applicants, as well as the supplemental posting of the Copyright Coalition on Domain Names setting forth a set of suggested “ground rules” for new TLDs.

A.  Registration and Contact Data Requirements.

Any successful application should require registrants to:  (1) Pre-pay all registration fees; (2) Provide accurate contact information and keep such information current; (3) Fully complete electronic registration forms; and (4) Certify that statements made in their registration applications are true.  Each of these requirements is key to furthering the objective of minimizing abuses of the domain name system.  Registrants in the existing gTLDs are currently required to adhere to these standards, and similar requirements should be adopted and enforced by those operating new TLDs.

Provision and maintenance of accurate contact information is of particular importance, both to deter abuses of the domain name system and to help root out consumer fraud, infringements of intellectual property, and other illegal conduct when it occurs online.  Too often those engaging in such conduct seek to hide behind false contact data in order to avoid detection and accountability.  In new TLDs as in existing TLDs, knowing submission of false contact data, or use of a domain name for illegal purposes, should result in the cancellation of the domain name registration.

Successful applicants must also set forth clear and specific rules governing who is allowed to register in the particular TLD and what activities are and are not appropriate or acceptable within the particular TLD.  This is especially true for so-called “chartered” or “restricted” TLDs.  Consideration should not be given to applications that purport to establish a specialized, targeted, or sector-specific TLD without setting forth relevant, meaningful, and enforceable guidelines limiting who is allowed to register in such domains.  Those proposals that set forth seemingly restricted TLDs without imposing meaningful restrictions on registration – such as a noncommercial domain that fails to establish or adequately enforce restrictions against unqualified registrants or commercial uses of domain names in the TLD  – would do little to further the goal of enhancing the diversity of the DNS and would likely result in increased defensive registrations and confusion of Internet users.

Finally, any successful application for a “chartered” or “restricted” TLD should include a speedy and efficient mechanism for determining compliance with the charter restrictions and a mechanism for the timely cancellation of a domain name that is registered or used in violation of the charter.

B.  Access to Registrant Contact Data (Whois). 

Successful applicants must provide for and ensure free, real-time access, via the World Wide Web, to a current database of full and complete registrant contact data for all registrants within the new TLD.  Like the requirement that registrants provide accurate and updated contact data, real-time public accessibility to such data is key to deterring and rooting out abuses of the domain name system, including consumer fraud, infringements of intellectual property rights, and other unlawful and harmful conduct.  Such contact data should be fully searchable – including by domain name, registrant’s name, street address, contacts’ names, NIC handles, and IP address – and successful applicants must not impose arbitrary or substantial restrictions on access to or use of such a Whois-type database.  Additionally, new TLDs should be required to agree to participate in a cross-registry Whois system to facilitate one-stop, seamless access to registrant data across multiple TLDs without regard to which individual registrars processes the domain name application.

Registrars in the .com, .net, and .org TLDs are required by the current ICANN Registrar Accreditation Agreement to provide free web-based public access to up-to-date registrant contact data, including the name of the second level domain (SLD) registered and the TLD in which that name is registered, the relevant nameserver information, the identity of the Registrar, the original creation date of the registration, the name and postal address of the registrant, and the name, postal address, e-mail address, telephone number, and (where available) fax number of the technical and administrative contacts for the SLD.  At a minimum, successful applicants must meet these baseline standards.  ICANN should reject any proposal to limit accessibility to registrant contact data (other than those restrictions that are reasonable and necessary to protect the integrity and availability of the data or to limit the inappropriate and abusive use of such information for things like unsolicited commercial e-mail).  Specifically, ICANN should reject any proposal to allow registrants to “opt-out” of or “opt-in” to Whois-type systems.  Favorable consideration should be given to elements of new TLD applications that propose innovations, enhancements, and additional functionality to Whois services, such as maintenance of a so-called “fat registry” of registrant contact data at the registry level or enhanced search functions.

C.  Dispute Resolution.

The ICANN Registrar Accreditation Agreement requires accredited registrars to “have in place a policy and procedure for resolution of disputes concerning SLD names.”  The Uniform Domain Name Dispute Resolution Policy (UDRP) adopted by ICANN on August 26, 1999, and adopted by all current ICANN-accredited registrars, sets forth a policy governing the resolution of disputes involving bad faith registrations and uses of domain names that are identical or confusingly similar to trademarks or service marks of others in which the registrants have no rights or legitimate interests.  Similarly effective dispute resolution procedures must be set forth by any successful applicants and put in place before registrations in such new TLDs begin.

Dispute resolution policies adopted in the new TLDs need not necessarily mirror the UDRP, but they should provide similarly effective mechanisms for the resolution of third-party disputes regarding abusive registrations and uses of domain names in a timely, transparent, and cost-efficient manner.  For “chartered” or “restricted” TLDs, such dispute resolution procedures should extend to and address disputes involving registrations and uses of domain names that violate applicable restrictions governing who is eligible to register in a TLD and to what use the SLDs in that domain may be put.  Such third-party dispute resolution procedures should supplement the unilateral authority of the registry/registrar to cancel domain names whose registration or use runs afoul of the domain name registration agreement – such as provision of false contact data or use of the domain name for unlawful purposes – or relevant charter restrictions.  Mere reliance on a third-party dispute resolution procedure to prevent and remedy abusive registrations is insufficient.

D.  Trademark Protection in the Start-up Phase.

Applications should be measured carefully against the criteria regarding the protection of the rights of others, as set forth by ICANN for assessing new TLD proposals.  Specifically, ICANN should scrutinize whether an application has a “well-thought-out plan for allocation of names during the start-up phase of the TLD in a way that protects the legitimate interests of significant stakeholders, including existing domain-name holders, businesses with legally protected names, and others with which conflict is likely”.  In this regard, any successful proposal should set forth a procedure whereby existing trademark and service mark owners can pre-register the word-portion of their marks on a first-come, first-served basis as a new domain name in a new TLD, subject to restrictions imposed by charter or registration requirements associated with a TLD.

E.  Compliance Review. 

Successful applicants must adopt and adhere to a mechanism whereby ICANN can verify the compliance with and enforcement of these minimum safeguards by each new TLD.  Such mechanisms should include provisions for receiving and resolving third-party complaints regarding registry/registrar compliance.

IV.  APPLICATIONS FOR NONCOMMERCIAL AND PERSONAL TLDS.

ICANN has solicited, and several applicants have put forward, proposals for noncommercial and personal TLDs.  MPAA does not object to the introduction of such a domain, given carefully conceived implementation and adequate safeguards to prevent abuses of such space.  MPAA strongly objects, however, to the notion that intellectual property is somehow deserving of less protection in such domains.

As a most fundamental matter, intellectual property rights are what they are.  The owner of a trademark or copyright enjoys the same substantive rights with respect to the use of her name or work, regardless of the space in which the use is made.  Thus, the infringing use of a copyrighted work does not become non-infringing simply because it is conducted under the banner of a “personal” domain instead of a .com domain.  While it is true that different mechanisms may be appropriate in different domains to protect substantive intellectual property rights, whatever mechanisms are employed must be adequate under the circumstances to protect against abuses of the domain to effectuate infringements of those rights.

MPAA considers a noncommercial or personal domain to be a species of restricted or chartered domain.  If a proposal is to meet the goal of filling a previously unmet need of Internet users, it should set forth a model of a truly restricted TLD, with strict and enforceable limitations on who may register and to what use such domains may be put, as well as effective mechanisms to ensure compliance with such limitations.  Such mechanisms should include effective unilateral mechanisms to prevent unauthorized registrations in the domain (mere assertions on the part of the registrant, without more, are insufficient) and to detect violations of the charter restrictions once a registration is issued.  Any successful proposal should also include a mechanism whereby third parties can submit complaints regarding charter violations and have such complaints acted upon in a timely fashion.  In any case, violation of a charter restriction should be grounds for revocation of the registration.

ICANN should also reject any proposal to limit requirements for provision of and access to accurate registrant contact data or to exclude effective dispute resolution procedures in a personal or noncommercial domain.  Even with the safeguards referenced above, enforcement of charter restrictions that a domain be used only for noncommercial or personal purposes is likely to be a difficult task (as seen with the failed “Acceptable Use Policy” for the .net, .org, and .com domains in the early 1990’s).  At the same time, copyright piracy in a personal or noncommercial domain on the Internet can inflict damages that are just as substantial and injurious as infringements in any other domain.  For example, an individual who posts copyrighted digital works on a website for download inflicts the same damage to a copyright owner whether he charges for the downloads or not.  In fact, would not be surprising to find that the harm inflicted is even greater in the so-called “non-commercial” context because there is no marginal cost to the person making the unauthorized copy.  Indeed, that is why in the United States the criminal copyright infringement laws were recently amended to make actionable willful infringements of copyright made without financial gain or commercial intent.

For these reasons, and consistent with ICANN’s stated aim of minimizing infringements in the new TLDs, any successful proposal for a noncommercial or personal domain must include adequate safeguards against infringement, including:  (1) charter restrictions strictly limiting those eligible to register a SLD in the domain and prohibiting the use of the domain for commercial or unlawful purposes (including to infringe the rights of others); (2) Rules requiring that individuals provide full and accurate registrant contact data and that they keep such data current; (3) Free real-time web-based public access to registrant data; (4) Mechanisms to detect violations of the charter restrictions, third-party mechanisms for submitting complaints regarding charter violations, and policies and procedures for revoking registrations that are the subjects of charter violations; and (5) Adequate dispute resolution procedures for resolving domain name disputes, including disputes regarding charter violations.

V.  APPLICATION OF NAME.SPACE, INC.

In addition to the generally applicable comments set forth above, the MPAA wishes to provide specific comments with respect to the application submitted by Name.Space, Inc., and in particular with respect to its proposed new audiovisual-related TLDs (.studios, .film, .dvd, .movie, and .films).  As explained in fuller detail below, MPAA believes the proposal embodied in this application fails to meet the criteria set forth by ICANN for the introduction of new TLDs and should be rejected.

As a general matter, the Name.Space application to operate a single registry for 118 different TLDs runs counter to ICANN’s stated aims of introducing new TLDs in a measured and responsible manner as a “proof of concept” and of enhancing competition in the DNS.  Even were the Name.Space application narrowed to a few or even a single TLD string, it fails to address adequately the guidelines and criteria set forth by ICANN for applicants desiring to operate new TLDs and the minimum safeguards specified by the Intellectual Property and Business Constituencies, and the Copyright Coalition on Domain Names, for successful applicants.

Finally, the proposed new sector-specific TLD strings related to audiovisual entertainment are a matter of particular concern to the motion picture industry.  As a general matter, no sector-specific TLD should be given consideration absent the participation and support of the stakeholders in the relevant sector.  Such involvement is notably absent with respect to the proposals for new TLDs aimed at registrations of film titles (e.g., .film, .films., .movie).  As a result, these proposals fail to take into account the detailed and carefully-crafted framework that now exists for the registration and administration of film titles in the offline world.  Any new TLDs for filmed entertainment should reflect this structured and time-tested mechanism for the orderly administration of film titles and must be structured with the careful involvement of the stakeholders in this industry.  Aside from the unique nature of film title administration, the failure of the Name.Space application to provide for adequate dispute resolution, robust access to full and complete registrant contact data, and enforcement of charter restrictions poses serious risks of abusive domain name registrations and increased audiovisual piracy in the proposed new TLDs.

A.  ICANN Criteria and Minimum Intellectual Property Safeguards.

Judged against the criteria set forth by ICANN for assessing TLD proposals, the Name.Space proposal fails to meet the objectives and standards expressed by ICANN for the introduction of new TLDs.

1.  The need to maintain the Internet’s stability. 

ICANN states as its first priority the preservation of the stability of the Internet, including the domain name system.  MPAA does not intend, by way of this filing, to make judgments as to the particular technical capabilities of any individual applicant with respect to maintaining the technical stability of the Internet.  Reference is made here only to the criteria set forth by ICANN that the introduction of a proposed TLD should not create alternate root systems, “which threaten the existence of a globally unique public name space.”  It bears noting that Name.Space has, since 1996, administered just such an alternative root system.  Currently, Name.Space operates more than 500 gTLDs, more than 400 more than it has applied to operate as new ICANN-approved TLDs.  There is no indication in its application whether Name.Space intends to continue operating these domains in its alternative root system concurrently with any ICANN-approved TLDs.

2.  The extent to which the proposal would lead to an effective “proof of concept” concerning the introduction of top-level domains in the future.

The ICANN Board resolution regarding the introduction of new TLDs adopts the policy that new TLDs should be introduced “in a measured and responsible” manner as a “‘proof of concept’ concerning the introduction of top-level domains in the future, including the diversity the proposal would bring to the program, such as fully open top level domains, restricted and chartered domains with limited scope, noncommercial domains, and personal domains; and a variety of business models and geographic locations.”  The Name.Space proposal fails to meet these aims.

To begin with, the proposal suggests flooding the market with more than 100 new TLDs – an approach that cannot be said to be either “measured” or “responsible”.  ICANN’s objectives are better met by the introduction of a limited number of domains that will serve as test-beds for new policies, business models, and innovations within the DNS.

Furthermore, the Name.Space proposal fails to achieve real diversity in the DNS.  While it is true that hundreds of new TLDs would add diversity in terms of the mere availability of differing TLDs, the proposed approach would fail to promote diversity in any other regard.  For example, a single registry would operate all of the proposed domains, limiting diversity of competitors at the registry level.  Moreover, while many of the proposed domains suggest sector specificity, the fact is that all 118 of the proposed domains are fully open TLDs.  There is no suggestion that .shop be limited to commercial retail businesses, or that .sex be limited to adult sites, or that .sucks be limited to noncommercial or consumer complaint sites.  As such, the proposal fails to accommodate the call for proposals that encourage diversity in the DNS, including restricted and chartered domains, noncommercial domains, and personal domains.  Finally, the administration of potentially unlimited numbers of domains by a single registry is not conducive to a diversity of business models and geographic locations.

3.  Enhancement of competition for registration services.

ICANN has identified as one of its “core principles” the encouragement of competition at both the registry and registrar levels.  As indicated above, the Name.Space proposal would inhibit, rather than promote, competition at the registry level by vesting the administration of more than 100 new TLDs in a single company.

4.  Enhancement of the utility of the DNS.

ICANN suggests that proposals be evaluated based on whether the addition of the proposed new TLDs would (1) add to the existing DNS hierarchy and would (2) not create or add to confusion of Internet users in locating the Internet resources they seek.  Among the considerations are whether a proposed TLD label intended for a particular use or purpose suggests that use, whether the proposed TLD is semantically “far” from existing TLDs so that confusion is avoided, and whether, in the case of a restricted TLD, the restriction is one that will assist users in remembering or locating domain names within the TLD (such as .car for cars).  An evaluation of each of these considerations suggests that the Name.Space proposal would lead to added confusion on the part of Internet users and impairment, rather than enhancement, of the utility of the DNS.

Many of the TLDs proposed by Name.Space are vague and do not suggest a clear use.  For example, it is unclear to what use domains such as .zone, .world, .free, .page, .cam, or .now would be put.  Others tend to suggest clearer possibilities, but fail to distinguish themselves with the sort of clarity that would add utility to the DNS.  For example, to what use might one expect .records to be put?  Would one expect to find a music site or an archival site in such a domain?  And what would one presume the .mad domain to be used for?  The Name.Space application itself takes the position that “[a] Top Level Domain on its own is meaningless by default, and may acquire its meaning only through use and context.”

The proposal also suggests numerous TLDs that are semantically very close to each other, raising the likelihood for confusion between domains.  For example, an online retailer would have to choose between .shop, .online, .direct, .market, .commerce, and .trade.  Religious organizations can register in either .church or .temple.  Both .mag and .zine are proposed as domains.  These are but a few examples of such conflicts.  Such a large number of similar and overlapping domains is likely to result in added confusion of Internet users.

Finally, assuming the proposed domains were, as they would appear to be at first glance, restricted domains, they would not assist users in remembering or locating domain names within the TLD because of the relatively vague and overlapping nature of the proposed names.  Someone looking for an art gallery would not readily know whether to look in the .art or .gallery domains.  Similarly, someone looking for the latest Harry Potter book would not know whether it is more likely to be in the .book or .fiction domain.  What’s more, none of the proposed domains are actually restricted, which is likely only to add to confusion on the part of Internet users, widespread defensive registrations, and duplicative registrations by those seeking an easily accessible presence online.

5. The extent to which the proposal would meet previously unmet needs.

While any proposal for such a broad array of names is likely to meet a diversity of needs, the Name.Space application does not reflect a well-conceived plan to identify what the unmet needs of the Internet community are – other than to meet the demand for new TLDs – or to meet those needs with any specificity.

6.  The extent to which the proposal would enhance the diversity of the DNS and of registration service generally.

As discussed above, the Name.Space proposal would limit diversity at the registry level by concentrating the administration of more than 100 TLDs in one company.  Diversity of proposals is compromised by replacing sought-after generic top level domains, restricted and chartered domains, noncommercial domains, and personal domains with a host of TLD strings that suggest such limitations but are, in fact, fully open.

7.  The evaluation of delegation of policy-formulation functions for special-purpose TLDs to appropriate organizations.

MPAA fully supports the assertion that policy-formulation in a restricted TLD should properly reflect “participation of the affected segments of the relevant communities.”  To be successful, any restricted, sector-specific TLD must reflect policies adopted with the careful coordination and support of the relevant stakeholders.  This is equally true for domains that are aimed at specific sectors even though they are not, in fact, restricted domains (such as the .movie .film, .films, and .studio domains proposed by Name.Space).  This particular issue is discussed in more detail below.  As discussed there, the MPAA has neither been consulted with respect to, nor does it support at this time, the proposed audiovisual TLDs contained in the Name.Space application.

8.  Appropriate protections of the rights of others.

Perhaps of greatest concern to MPAA member companies are the considerations set forth with respect to the protection of rights of others in connection with the operation of new TLDs.  The overall utility of the DNS and the continued growth of the Internet is contingent upon the capacity to safeguard in the online context the rights enjoyed by persons in the offline world.  Included among these are the intellectual property rights upon which the MPAA member companies’ businesses are built.  For that reason, careful consideration of the criteria set forth by ICANN in this regard, viewed in light of the minimum criteria suggested by the Intellectual Property and Business Constituencies and the Copyright Coalition on Domain Names, is imperative.

First, the Name.Space proposal presents an inadequate plan to protect legitimate interests of significant stakeholders during the start-up phase of the proposed TLDs.  The proposed mechanism to address the potential rush for registration in the start-up phase is to offer a massive number of TLDs to minimize demand.  It is not clear that the introduction of a large number of overlapping and unrestricted domains will limit, rather than increase, the rush to register domains, particularly in the context of defensive registrations of trademarks and names already existing in the .com, .net, and .org TLDs.  Particularly troubling is the assertion made by the application that the “advanced registrations” of “famous” brands over the past several years while operating the proposed TLDs in an alternate root somehow satisfies the need for a “sunrise” period for the registration of well-known marks.

Second, the proposal lacks any recognized mechanism for resolving domain name disputes.  The proposal specifically rejects application of the UDRP and declines to substitute any other dispute-resolution mechanism to resolve claims involving abusive and bad faith registrations and uses of domain names.  Rather, domain name registrants and other stakeholders are left to resolve their disputes in court – a proposition that is directly at odds with the call for the adoption and implementation of a dispute resolution procedure that is timely, transparent, and cost-efficient.

Third, the proposal fails to make adequate provision for Whois service in that it allows registrants to decline to have their contact data included in any public directory, including the publicly available Whois database.  As discussed earlier, this is a policy that is, in general, unacceptable and contrary to longstanding ICANN policy.  It is a policy that is even more problematic in the context of this particular application.  Given the lack of enforcement specified with respect to things such as provision of false contact data and the lack of any mechanism for dispute resolution, coupled with the ability of individuals to simply opt-out of the Whois system, TLDs like the proposed .dvd, or even .movie, .film, and .studios, become likely hotbeds of audiovisual piracy.  There are currently a host of sites engaging in audiovisual piracy that include in their domain names such buzzwords as “dvd”, “divx”, “moviez”, and “warez”.  Deterrence and eradication of piracy on these sites is difficult under the existing system.  It would be exponentially more difficult to enforce intellectual property rights in prime piracy domains like “.dvd”, particularly if individuals are able to hide behind a cloak of anonymity and avoid the application of the rules aimed at avoiding abuses of the DNS.

Finally, while the proposal does contain some measures reflecting consideration of the rights of third parties, they lack specificity and are simply inadequate.  The proposal contains no provision for ensuring that accurate contact data is provided and maintained, no charter restrictions whatsoever, much less relevant enforcement mechanisms, and no mechanisms for resolution of third-party disputes.  The proposal requires domain names to be put to use in a timely manner as a means of deterring abusive registrations, but this requirement is easily met regardless of whether the registration and use is abusive or in bad faith.  The proposal also promises to engage in some pre-screening of applications, but more information is needed to assess the utility of the specific proposal.

In sum, the Name.Space application lacks the most fundamental safeguards necessary to protect the rights of third parties and deter abuses of the DNS.  The domains it proposes, and the lack of accountability inherent in the proposal, would invite the use of the DNS to facilitate piracy – both in terms of domain name piracy and infringement of copyright – without any mechanisms to deal with such abuses in timely and efficient manner.

9.  The completeness of the proposals and the extent to which they demonstrate realistic business, financial, technical, and operation plans and sound analysis of market needs.

As discussed above, the Name.Space application fails in a number of respects to reflect adequate and complete consideration of the criteria set forth by ICANN.

B.  Audiovisual Chartered Domains.

In addition to the more general concerns discussed above, the proposed sector-specific audiovisual TLDs are a matter of particular concern to the motion picture industry.  Once again, policies in sector-specific TLDs should be formulated with the “participation of the affected segments of the relevant communities.”  Thus, as a general matter, no sector-specific TLD should be given consideration absent the participation and support of the stakeholders in the relevant sector.  Such participation and support is notably absent with respect to the proposals for new TLDs aimed at registrations of film titles (e.g., .film, .films., .movie).  For that reason alone such proposals should be rejected.

Even more specifically in this context, however, by failing to involve the relevant stakeholders, these proposals fail to take into account the detailed and carefully-crafted framework that now exists for the registration and administration of film titles in the offline world.  The Title Registration Bureau of the MPAA has for years administered a system for the registration of titles for United States theatrical motion pictures and for the resolution of disputes relating to such titles.  This system allows producers and distributors of motion pictures – including both MPAA members and non-members – to lay claim to a film title and ensures a period of exclusivity for that title in certain circumstances within certain time limits.  In so doing, it serves effectively to avoid conflicts between names and to facilitate certainty and stability across industry in the naming of theatrical motion picture releases.  Any new TLDs for filmed entertainment should reflect this structured and time-tested mechanism for the orderly administration of film titles and must be structured with the careful involvement of the stakeholders in this industry.

VI.  CONCLUSION.

MPAA appreciates this opportunity to share its perspectives with respect to the proposals for introduction of new TLD and looks forward to continuing to work with ICANN as this process moves forward in the coming months.

     
 

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