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.