Should ISPs And Registrars Be Responsible For Bogus Online Pharmaceutical Sites?

from the a-thousand-times-no dept

Thu, Jan 7th 2010 3:23am — Mike Masnick

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.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: domain names, isps, liability, pharmaceuticals, registrars, trademarks

7 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Jimr (profile), 7 Jan 2010 @ 5:17am

Registrars
All things with in reason. Registrars should do a little more due diligence - signing up for (AND GETTING) a domain with totally false information is a problem. The Registrars are more interest in getting money than actually doing any confirmation of identity.

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.
[ link to this | view in chronology ]
The Anti-Mike (profile), 7 Jan 2010 @ 5:41am

The ISPs face an issue because while most of them are decent people not trying to screw anyone over, some are specifically set up to allow illegal activity. They play the game of ignornace, all the while actively supporting bad elements.

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.
[ link to this | view in chronology ]
- Yeah - that's the ticket, 7 Jan 2010 @ 6:52am
  
  Re:
  "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."
  
  So, let's punish them all.
  [ link to this | view in chronology ]
  - The Anti-Mike (profile), 7 Jan 2010 @ 9:14am
    
    Re: Re:
    No, let's hold them all up to the same standard, and the ones who don't hold up their end of the deal will stand out more, with less of a legal leg to stand on.
    [ link to this | view in chronology ]
Liquid (profile), 7 Jan 2010 @ 5:52am

I say no
It shouldn't be the responsibility of either the ISP or the Registrar they are only there to provide a service. Since the whole file sharing thing start more and more companies have been on the bandwagon of making ISP's, and other entities the police of the internet. Bad example but its the only one I can think of right now on a whim. If I washed cars for a living. I provide a service of washing peoples cars. People start saying that it should be my job to force other people with dirty cars to get them washed. Dirty cars are offensive to them or they make it illegal or own, or operate a dirty car. It should be in no way shape form form my responsibility to make other people wash their cars.

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"...
[ link to this | view in chronology ]
Michial Thompson, 7 Jan 2010 @ 6:29am

Responsible ???
Should they be responsible for their actions, NO, but should they be responsible for shutting them down when they have been proven to be fruadulant YES.

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.
[ link to this | view in chronology ]
- The Anti-Mike (profile), 7 Jan 2010 @ 10:56am
  
  Re: Responsible ???
  You hit the nail on the head here.
  
  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.
  [ link to this | view in chronology ]