USTR Goes Off The Deep End: Names Domain Registrar Tucows As A 'Notorious Market' For Piracy

from the keep-it-together,-ustr dept

Tue, Mar 10th 2015 4:11am — Mike Masnick

As part of the annual joke from the USTR known as the Special 301 Report (which is so ridiculous that even top people at the US Copyright Office mock the USTR about it), the USTR publishes what it calls its "notorious markets list." The Special 301 Report, if you don't know, is the report where big companies whine to the USTR about countries those companies feel don't respect US intellectual property rights enough. The USTR collects all of those whinings, and rewrites it as a report to send out to US diplomats to try to shame countries into "cracking down" on the behaviors that these companies don't like -- no matter whether or not it complies with US or local intellectual property laws. Starting a few years ago, the USTR broke out a separate list of online websites, which it refers to as "notorious markets." It started doing this in 2011, in a process that was intended to support SOPA (because SOPA supporters wanted the list of "rogue" sites that would be banned under SOPA).

The USTR itself admits that there's basically no objective or legal rationale behind its process:

The List does not purport to reflect findings of legal violations, nor does it reflect the U.S. Government’s analysis of the general IPR protection and enforcement climate in the country concerned.

The latest Notorious Markets list is out (technically, it's the "2014 Out-of-Cycle Review of Notorious Markets") and it's full of the usual misleading crap. It's quite amazing to watch US government officials celebrating the censorship of online forums and websites, calling it "progress." Free expression is not particularly important to the USTR when the MPAA complains about it, apparently.

But the really astounding move in this latest report is by the USTR to start including domain registrars as "notorious markets," including one of the most popular and widely used registrar in the world, Tucows:

This year, USTR is highlighting the issue of certain domain name registrars. Registrars are the commercial entities or organizations that manage the registration of Internet domain names, and some of them reportedly are playing a role in supporting counterfeiting and piracy online.

And here is the entry against Tucows:

Tucows.com: Based in Canada, Tucows is reportedly an example of a registrar that fails to take action when notified of its clients’ infringing activity. Consistent with the discussion above, USTR encourages the operators of Tucows to work with relevant stakeholders to address complaints.

Not surprisingly, the USTR lays the FUD on thick in claiming that it feels the need to do this to protect you against dangerous counterfeit drugs that are being offered on these sites, and those evil domain registrars that refuse to shut down an entire business because someone has complained:

Several respondents to the 2014 Federal Register Request identified registrars that purportedly facilitate the distribution of unauthorized copyright-protected content. One respondent identified several registrars that have apparently refused requests to lock or suspend domain names used to sell suspected counterfeit pharmaceuticals to consumers worldwide. This conduct also presents a public health challenge, and requires a coordinated response by governments and a variety of private sector stakeholders.

According to one report, an estimated 96 percent of online pharmacies targeting U.S. consumers are operating in violation of applicable U.S. law and standards. An estimated 50 percent of websites worldwide that hide their physical address are selling illicit pharmaceuticals, including those labeled with counterfeit trademarks. The website www.LegitScript.com has reviewed over 40,000 online drug sellers, but found fewer than 400 to be legitimate. Studies have found that counterfeit anti-cancer, anti-HIV/AIDS, and other medications are not only ineffective, but in some cases may contain toxic or deadly adulterants, such as rat poison.

As you may recall, the scary stories about "counterfeit drugs" and conflating that with copyright infringement is standard operating procedure for those pushing for stronger copyright enforcement. That's because they can't show any real harm from copyright infringement, so they talk about drugs. But what they miss is the fact that counterfeit drugs are actually a very very small problem. The cases of "toxic or deadly adulterants" are exceedingly rare. Even when dealing with unauthorized pharmacies, studies have shown that they tend to deliver legitimate products (it's not good business to kill your clientele, after all).

As for the whole "only 400 out of 40,000 online drug sellers are legit" claim -- well, consider the source. LegitScript is known for frequently conflating online pharmacies that are questionable, with perfectly reasonable authorized Canadian pharmacies that merely "reimport" legitimate versions of drugs at much lower costs than US pharmacies. LegitScript has regularly been used to try to shut down or to tar and feather Canadian pharmacies that provide much cheaper access to medicine. President Obama, in the past, spoke out in favor of allowing more "reimportation," but later went back on that campaign promise, once American pharmaceutical companies got angry. Even Senator Patrick Leahy, the author of PIPA (SOPA's companion bill in the Senate) has been a big supporter of reimportation of drugs from Canada.

And yet, the USTR implies that merely reimporting drugs is the same as someone selling rat poison pretending it's something else. The big pharmaceutical companies have been really pushing a lot lately to force ISPs to completely take down websites if they sell drugs that weren't originally intended for the US, even if there is no court order or other adversarial process. They just want to complain and have the sites taken down. It appears that Tucows, quite reasonably, finds this to be somewhat excessive... and in response the USTR labels it as a "notorious market."

To put it mildly, this is absolutely crazy.

Note that this is the very same USTR that is currently negotiating the TPP and TTIP agreements, which it insists will help promote a free and open internet. Yet, at the very same time, it's going around and calling domain registrars "rogue markets" because they won't arbitrarily take down entire websites, because some pharmaceutical company complains that it doesn't want the competition and some movie studio is pissed off that a website links to some infringing content (no matter what else may be on that site, or who is actually responsible).

It is difficult to see how the USTR can claim to be in favor of an open and free internet, and the free flow of information (as it claims), when at the very same time, it's arguing that domain registrars themselves should not only be held responsible for any infringement, but rather that they should censor entire sites just because the users of some sites whose domains were registered via that registrar, happened to infringe. Next thing you know, the USTR will be demanding that the makers of asphalt be held responsible for not stopping cars that have counterfeit tires from driving.

The USTR has long been something of a joke, but recently it has tried to present itself as really "getting" the internet after years of not getting it. By naming Tucows as a "notorious market," however, the USTR has only shown how totally clueless it remains, and raises very serious questions about its focus and knowledge as it negotiates important trade agreements.

2014 Notorious Markets List Published 0 (PDF)2014 Notorious Markets List Published 0 (Text)

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 registrars, notorious markets, ustr
Companies: tucows

36 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 10 Mar 2015 @ 4:35am

US Trade Relocator would be more appropriate
[ link to this | view in thread ]
Michael, 10 Mar 2015 @ 4:54am

98% of these online pharmacies ship products via the US postal service. We really need to shut down that service for facilitating the distribution of rat poison labeled "medicine".

100% of these online pharmacies ship products via services that use US federal and state roadways. We really need to shut down the state and federal government for facilitating the distribution of rat poison labeled "medicine".

Need I go on?
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 5:09am

Wow, I actually (for real) thought the USTR was some sort of lobbying group, not an actual government entity.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 5:30am

It is not at all apparent the basis for stating the remarkable claim that the USTR is of the belief domain name registrars should be held accountable for any infringement by a website it has registered. In fact, the factual representations in the article belie any such claim, so there is either important information missing from the article or the presented facts are being deliberately misrepresented.

You do understand, do you not, that the current practices concerning re importation are fraught with the possibility of fraud? We have within the U.S. a rather rigorous system for prescribing controlled substances, and to my knowledge reimportation in far too many instances bypasses that system, needlessly placing patients at significant health risk.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 5:43am

The government is a perpetual FUD machine. If we could only find some way to convert FUD into energy, we'd have perpetual unlimited energy.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 5:45am

Re:
The two are not mutually exclusive, especially when regulatory and government capture by big corporations is allowed to happen..
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 5:49am

And let's look at the other shoe...
> According to one report, an estimated 96 percent of online pharmacies targeting U.S. consumers are operating in violation of applicable U.S. law and standards.

How many US commercial web sites targeting Quebec citizens are in violation of applicable Canadian law?

They aren't targeting Quebec citizens? They're in English, aren't they? And they're priced in Dollars, aren't they? (Deceptive currency switch, that!)
[ link to this | view in thread ]
Ed (profile), 10 Mar 2015 @ 6:02am

USTR should be considered a terrorist organization.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 6:06am

it's not good business to kill your clientele, after all

I don't know. The tobacco industry is still going with that business model.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 6:06am

Court Orders
Where are all these court ordered suspensions of domain names related to counterfeit goods that Tucows supposedly ignored?

Oh, you never got a court order, then what the fluck are you complaining about?
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 6:13am

There are some domain registers, such as GoDaddy, that will immediately revoke a domain - no questions asked - upon receiving a complaint of some kind. Even sites that are fully compliant with US law (as in torrent sites that pull infringing content upon demand) will face an uphill battle hoping to get a fair hearing and trying to prove to GoDaddy that they're legally kosher .

Apparently this is what the US government wants all domain registers to be like, acting as judge, jury, and executioner, when presented with a complaint of any kind. It would indeed be fun to watch a domain register yank Amazon.com's address because of some complaint about an infringing product, let's say, a week before Christmas, causing Amazon to lose millions of dollars in sales.

But it's a foregone conclusion that companies like Amazon are in a special protected class, immune from such dangers that threaten the rest of us peons who live outside the castle's walls.
[ link to this | view in thread ]
nasch (profile), 10 Mar 2015 @ 6:25am

Re:
It is not at all apparent the basis for stating the remarkable claim that the USTR is of the belief domain name registrars should be held accountable for any infringement by a website it has registered.

"However, the IPR enforcement system can break down when the tools available to rights holders become ineffective, due to, among other things, the failure of domain name registrars or other similarly situated entities to follow rules intended to help combat illicit activity."

What illicit activity regarding intellectual property rights do you suppose they're referring to? If it's not a domain name itself, then it must be infringement by a site the registrar has registered.

We have within the U.S. a rather rigorous system for prescribing controlled substances, and to my knowledge reimportation in far too many instances bypasses that system, needlessly placing patients at significant health risk.

Can you share where you got this knowledge?
[ link to this | view in thread ]
Pragmatic, 10 Mar 2015 @ 6:30am

Re:
Energy from FUD? That's a socialist plot, I tell you! *Froths at the mouth*
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 6:32am

'domain registrars that refuse to shut down an entire business because someone has complained:'

what a damn shame that Hollywood and the entertainment industries dont shut down when people complain! there must be more complaints about the media, what it is, where/when it's released, the protection on it, the screw ups made that target genuine, paying customers and many others. it would be far more suitable to target them!
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 6:42am

Condemnation or...
A fantastic recommendation! Thank you USTR, Tucows is exactly what I was looking for in a domain registrar.

It's a sad day when a foreign company protects US citizens better than the entities whose entire existence is based on the premise to protect those same citizens.

It's been sad for a looong long time.*sigh*
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 7:16am

ISDS To the Rescue!
i wonder if the investors of Tucows can sue the USTR for loss of profits due to libelous claims. Hmm....
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 7:21am

GoDaddy is far worse. So why didn't the USTR point the finger at them?

Oh, wait...
[ link to this | view in thread ]
John Fenderson (profile), 10 Mar 2015 @ 7:42am

Re:
There is significant potential for fraud in all systems, including ours. The important point isn't really the potential, it's actual fraud. And nobody is saying that actual fraud should go without investigation or action.

The issue is that claiming that reimportation of drugs which are identical to the drugs we get in the US is not, in any sense of the word, counterfeiting.

"We have within the U.S. a rather rigorous system for prescribing controlled substances, and to my knowledge reimportation in far too many instances bypasses that system, needlessly placing patients at significant health risk."

Are you saying that the Canadian prescription system is somehow lacking? I have yet to see evidence that this is a significant problem. Do you have any?
[ link to this | view in thread ]
John Fenderson (profile), 10 Mar 2015 @ 7:45am

Re: And let's look at the other shoe...
Along with redefining "counterfeit" to mean something other than counterfeit, they have also redefined what "targeting US consumers" to mean "a US citizen is able to order it."
[ link to this | view in thread ]
John Fenderson (profile), 10 Mar 2015 @ 7:46am

Re:
"There are some domain registers, such as GoDaddy, that will immediately revoke a domain - no questions asked - upon receiving a complaint of some kind."

I'll add that to the already lengthy list of reasons to never use GoDaddy.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 7:58am

Re:
Confusing, I know. I guess they just work for the lobbyist.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 8:09am

Re:
There are some domain registers, such as GoDaddy, that will immediately revoke a domain - no questions asked - upon receiving a complaint of some kind.

First of all, anyone doing business with the filth at GoDaddy deserves pain.

Second, while GoDaddy is notorious for yanking domains based on entirely unsubstantiated complaints, you need to understand that this is actually part of their business model because it drives up sales.

Yes, you read that correctly. Here's how it works.

Consider an ordinary domain owner: you register one -- maybe two, if you want to register the same name in a couple of TLDs. Then you use it.

Now consider a spammer or a phisher or a typosquatter or a domaineer or some other abuser. They're not going to register two domains: they're going to register two thousand. Why? Because as each one of those gets blacklisted or yanked by the registrar, they're going to move on to the next one.

And when they've blown through all 2,000, they'll just register 2,000 more. They can easily make enough profit to afford doing so -- and the registration fee for these disposable domains is just a cost of doing business.

GoDaddy will not ban such abusers: they're come right out and said so. And why should they? They're GoDaddy's best customers. They're repeat volume purchasers who have done and will do this every month for years at a time, why would GoDaddy want to stop doing business with them?

("Ethics?" Not a known quantity at GoDaddy, who jumpstarted their business by spamming before they moved into rampant misogyny.)

So the abusers get what they want: a steady supply of disposable domains at a bulk discount. GoDaddy gets what it wants: it can point to all those confiscated domains as "proof" that it's on the job, shutting down abusers. They both make money, the charade fools a LOT of people who don't know any better, and the entire rest of the Internet gets spammed, phished, etc. courtesy of the partnership.

I've been tracking this for a very long time, and the number of such disposable domains -- permanently burned and unusable by anyone -- is now in the tens of millions. (That's probably a serious undercount, because those are just the ones I know about. If I make a reasonable extrapolation, I get a number an order of magnitude higher.)

Now, to get back to where this started, will GoDaddy sometimes yank a domain from someone who only has one or two? Sure. Will that drive up sales? No. Do they care? Of course not, whoever that is isn't a volume/repeat customer so why should GoDaddy care?

GoDaddy isn't the only registrar playing this game, but they're one of the best at it. Every abuser on the planet knows it, which is why they flock to GoDaddy, the spammer's best friend.
[ link to this | view in thread ]
That One Guy (profile), 10 Mar 2015 @ 8:31am

Re:
and to my knowledge reimportation in far too many instances bypasses that system, needlessly placing patients at significant health risk.

You want to know what really 'needlessly plac[es] patients at significant health risk'? Pricing vital, 'I need this to live or have a decent life' drugs at obscene prices, prices that people even with decent health insurance might struggle to pay, and those without don't have a chance of doing so.

If the drug companies want to whine about how counterfeit drugs are putting people in danger, and claim that they are just so concerned with the health risks people are facing by buying 'unauthorized' drugs, perhaps they should focus on why people are buying those 'counterfeits' , namely their obscene pricing, and do something about that.

Put plainly, no-one believes that the problem drug companies have with these 'unauthorized' versions or importations is due to health risks, everyone knows it's all about the money, and the companies couldn't care how many people suffer or die as long as they can keep raking in the cash.
[ link to this | view in thread ]
That One Guy (profile), 10 Mar 2015 @ 8:36am

Re:
Drug counterfeiters and 'rogue' pharmacies tend to be more moral and ethical than tobacco execs though(not that that's a hard standard to beat).
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 9:05am

Re: Re:
...the already lengthy list of reasons to never use GoDaddy...

Does that include claiming LEGITIMATE emails are spam and sending them to "nul" instead of the recipient? I lost quite a bit of business because of that. Cox does the same thing but at least they have an option you can set to mark as spam and send to your inbox instead of trash.
[ link to this | view in thread ]
John Fenderson (profile), 10 Mar 2015 @ 9:19am

Re: Re: Re:
GoDaddy does mail hosting? I know nothing about that aspect of their services, but given that they engage in so much obnoxious behavior, I would be surprised if it didn't apply just as much to hosting services.

In all fairness, though, I have yet to find a third party that does spam filtering well -- so I always disable all spam filtering when I'm using such services. Instead, I run my own spam filter. That way, I can locate and correct misclassifications.
[ link to this | view in thread ]
TheResidentSkeptic (profile), 10 Mar 2015 @ 9:37am

Question for gov't lawyers..
Can us citizens file a class-action suit against the gov't for mis-use of taxpayer funds for wasting money on the USTR putting out crap like this?
[ link to this | view in thread ]
nasch (profile), 10 Mar 2015 @ 9:52am

Re: Question for gov't lawyers..
Can us citizens file a class-action suit against the gov't for mis-use of taxpayer funds for wasting money on the USTR putting out crap like this?

I think courts have generally not allowed such suits to proceed.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 10:16am

Re:
> ...needlessly placing patients at significant health risk.

I think you misspelled "patents". HTH.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 10:19am

Re: Condemnation or...
I recommend (and use) Nearly Free Speech. They're ruthless with spammers but they stand up for their customers against bullies like the MAFIAA.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 10:20am

Re: Re:
It's all about the "I" in patents... not so much in patients.
[ link to this | view in thread ]
all your penis is belong to NSA, 10 Mar 2015 @ 10:24am

Suck my D!ck USA
Suck my D!ck USA
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 12:49pm

When it comes the Virgin Islands, where 4shared is supposedly hosted, it should not be surprising.

I would imagine that anything goes in the BVI. Hillary's private Email server is hosted there by Confluence Networks.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2015 @ 4:33pm

Re: And let's look at the other shoe...
Quebec law dos not apply to websites hosted in the United States
[ link to this | view in thread ]
Anonymous Coward, 12 Mar 2015 @ 6:56pm

Re: Re: And let's look at the other shoe...
"Quebec law dos not apply to websites hosted in the United States"

Yet, US law applies to websites hosted in Quebec. Funny, that.
[ link to this | view in thread ]
Analyst, 21 May 2015 @ 10:09am

$TCX TCX Tucows domain risk
[ link to this | view in thread ]