Should ISPs And Registrars Be Responsible For Bogus Online Pharmaceutical Sites?
from the a-thousand-times-no dept
Michael Scott points us to an article at CircleID that appears to be little more than a disguised press release for a company pitching "brand protection service," suggesting that registrars and ISPs need to crack down on illegal online pharmacies and drug trafficking or face legal consequences. While the analysis is correct that trademark violations are a loophole not protected by CDA section 230 safe harbors, that doesn't necessarily mean that a registrar or ISP is automatically liable for hosting such a site. The whole point of section 230 is to make sure that liability is properly placed on the user, rather than the service/tool provider. That should stand even without section 230 protections. You can't just blame a third party because they're easier to find. The article seems to imply that if anyone complains about a trademark in a domain name, registrars and ISPs should automatically shut down that site -- but that would create serious problems. The real issue here is a serious loophole in safe harbor protections when it comes to trademarks. The answer shouldn't be a moral panic for registrars and ISPs, but to close the loophole and harmonize the various safe harbor provisions.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: domain names, isps, liability, pharmaceuticals, registrars, trademarks
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Registrars
ISP on the other hand can have no clue to what your site is about. It could look totally legit and then between the hours 4AM-6AM is auto-updated to illegal online pharmacies and drug trafficking site to correspond with some bulk spam email. Difficult for an ISP to control unless they had to pass everything by a publisher - now that would add massive costs for your ISP not to mention the massive temptation for the ISP to also act as an editor for the content you want to post.
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The whole ESTdomains thing is a perfect example, where the bad guys pretty much locked up registrars, hosts, IP blocks, transit, and every other step in the process in a manner to allow illegal activities (such as phishing, toolbar / BHO installs, etc). When someone would complaint to the "host", the host would ignore them. So they complain to the connectivity provider, same thing. They complain to the registrar, same thing, because they were all connected and all in on it.
There are some ISPs that are known as spam friendly, phishing friendly, etc. Some hosts loudly proclaim themselves as willing to take the heat, willing to insulate their clients from problems. Some even specialize in hosting the IRC chat rooms used for bot herding.
In the end, the vast majority of hosting companies are good and decent, but a few bad ones lead to all of them ending up with more responsibilities.
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Re:
So, let's punish them all.
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I say no
Same should be said for ISP's or Registrars. They shouldn't go out of their way to police the internet for things such as that. If they did do you have any idea how much of the internet would be shut off, because some jack hole thinks that something should be illegal. If they wanted someone to police the internet by going out, and actively scanning network traffic to find illegal activities then why don't the government just create a new organization for it. They can call it DIP: Department of Internet Police. So that way people can say when they got caught "I GOT DIPPED"...
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Responsible ???
If the Registrars alone would take action for terminating domains that have been proven to be fraudulant or committing large scale scams would shut them down, perhaps a dent could be made in the crap on the internet.
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Re: Responsible ???
Asking the ISPs to be responsible for a site is not at all acceptable. ISPs do not control content, are not involved in how the site is run, etc.
The real problem here isn't who shuts the site down, but the speed of the justice system (slow, slower, stop) and the internet (new domains come live in about 10 seconds now). If the justice system runs at it's current pace, it can take years for justice to catch up and close websites, if it is done only on the basis of "proven in a court of law".
Consumers online are not well treated by the current speed of the justice system. I don't know the solution, but clearly there needs to be faster ways to shut things down before more consumers are victimized.
ISPs need to be more aware, and more careful in the customers they choose to host. They shouldn't be shy about terminating hosting arrangements with anyone they are not comfortable with.
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