Will Homeland Security Domain Seizures Lead To Exodus From US Controlled Domains?

from the driving-business-abroad dept

With Homeland Security's Immigration and Customs Enforcement (ICE) group now seizing domain names of perfectly legitimate foreign companies, one of the "defenses" of this action is that what those sites do may violate US laws (the lack of an actual court deciding this is conveniently overlooked, but we'll let that slide for now) and thus since the domains are managed by US-based registrars, it's technically property in the US, and thus open to seizure. That, of course, is a case of focusing on the technicality of the situation, rather than the reality of the situation. With Rojadirecta, it's pretty clear that the site was used almost entirely by people in Spain, not in the US. That the .org domain is managed by a US company seems like a weak dodge by US officials at the urging of industry.

But, of course, there are serious questions about the wider impact of this decision. Back in October, we highlighted how Libya had begun seizing .ly domains, because they felt that the content on those domains violated Sharia Law.

When the US is following in the footsteps of Libya for foreign censorship, there's a serious problem.

Of course, after the seizure of the .ly domains, many people started to move away from those domains (including presidential hopeful Mitt Romney, who dumped his Mitt.ly domain). It will be interesting to see if more companies (especially foreign ones) start moving away from .com and .org for just this reason. When the US government suddenly decides that it can simply take your domain name with no warning, no due process, no adversarial hearing and no regards to whether or not the site is actually legal in the country it's targeting, that seems like a pretty clear warning sign that it's time to find a safer domain home. If I were a US domain register or registrar, I'd be pretty pissed off at Homeland Security for promoting the fact that the US government has no problem censoring websites it doesn't like. It's only going to serve to drive people away, and perhaps open up a huge opportunity for a new TLD to become a standard from a country that really believes in due process and free speech.

Filed Under: censorship, domains, homeland security, ice, seizures

Wikia Owned Wikileaks.com Domain; Assange Ignored Attempts To Hand It Over

from the domain-oddities dept

I had seen the BBC article from a week or so ago about Jimmy Wales talking about the complexity of Wikipedia and how it needs to improve, but hadn't read all the way to the end where there was a rather interesting tidbit. Copycense however alerted us to this little bit of trivia at the end about how Wikipedia's sorta sister company Wikia owns some Wikileaks domain names... including Wikileaks.com:

Technically, the Wikia company has until this week legally owned domain names including wikileaks.net, wikileaks.com and wikileaks.us.

"We transferred the domains to them but they never completed the technical part," said Mr Wales. "All they needed to do was sign in and complete the transfer but they have never done it."

He said the domains had been registered "defensively" when Wikileaks launched in 2006.

"When they first launched they put out a press release that said the 'Wikipedia of secrets', which would have been a trademark violation.

"So someone in the office registered two or three domains."

He said that he regularly tries to prompt Wikileaks' founder Julian Assange to complete the transaction, to no avail.

"I saw someone else say that he's prone to saying 'I'm busy fighting superpowers' and that's exactly what he said to me."

Mr Wales said the domains would expire "this week".

"I'm not renewing them," said Mr Wales.

"We may ping them and say they are loose."

Of course, I just checked the whois on the .com and the .net, and both say they're registered until 2012... so someone renewed the domains, but it's not clear who.

Filed Under: domains
Companies: wikia, wikileaks, wikipedia

RIAA Threatening ICANN About .music; Claiming It Will Be Used To Infringe

from the when-you're-an-organization-of-lawyers... dept

Oh look, the RIAA is overreacting yet again -- and doing so the only way it knows how: by rolling out the legal threats. This time it's threatening ICANN over its new top level domain program, which allows all sorts of new TLDs to be registered -- including planned proposals for a .music domain. But the RIAA isn't happy about this, because:

We are concerned that a music themed gTLD will be used to enable wide scale copyright and trademark infringement.

I'm sort of at a loss how the specific TLD makes any difference whatsoever in enabling infringement. A website's a website, no matter what the TLD is. How will having a new TLD enable any more infringement at all? It seems like the real goal of this is (of course) to get ICANN to act as a copyright cop for any such TLD. Just as the RIAA has sought to make copyright cops out of ISPs, the government and other third parties, now it's seeking help from ICANN, who hopefully knows better. So it suggests that it would like to "work with ICANN... to ensure this type of malicious behavior does not occur."

And, of course, in typical RIAA fashion, if ICANN says no, the RIAA plans to go legal:

We strongly urge you to take these concerns seriously... we prefer a practical solution to these issues, and hope to avoid the need to escalate the issue further.

I'd love to see the RIAA try to "escalate the issue further." What's it going to do? Is any court really going to go so far as to say that just because something that has not yet been created, and might possibly in some weird stretch of the imagination be used for infringement, that ICANN has to block it?

Filed Under: domains, icann, music, riaa, tlds, top level domains
Companies: icann, riaa

Homeland Security Finally Files For Civil Forfeiture Of Domains Seized Back In June

from the taking-their-sweet-time dept

While we've been paying a lot of attention to the domain seizures by Homeland Security's ICE (Immigration & Customs Enforcement) group in November, we also covered a similar operation that took place back in June. It's been noted that no actual charges have been filed against the operators of those sites. But in early December, without most people noticing, apparently ICE finally filed to officially commence civil forfeiture procedures against those domains (thanks to Terry Hart who noticed this). To understand what's going on here, I'll again point you to Hart's explanation of the difference between seizure and forfeiture. Basically, seizure is simply the first step in a forfeiture process (a process, that we've noted is regularly abused by law enforcement). It doesn't appear the owners of these sites have been charged with anything yet at all. It's just that, effectively, the sites themselves are being charged with being used in the commission of a crime.

There's nothing particularly surprising or enlightening in the forfeiture proceeding document, other than acting as official notification if anyone wishes to claim a legal interest in the "property" in question. They would need to contest the forfeiture within 60 days of December 17th. This covers the domain names TVshack.net, Movies-Link.tv, ZML.com, Now-movies.com, ThePirateCity.org, PlanetMoviez.com, Filespump.com. As far as I know, there has been little indication that any of the original domain holders for those domains plan to contest the forfeiture process. Many have already moved on to other domains anyway.

There's nothing all that enlightening in the filing. It's pretty similar to the affidavit we saw that was used to seize the more recent domain names, with a few similar technical errors, but nothing necessarily as egregious as the errors in the more recent case. Basically, an ICE agent downloaded or streamed a few movies on some sites the MPAA pointed them to. The MPAA then said "those movies are not legally available online," and, voila, now ICE says it should get to own the domain name. It's basically ICE admitting that it's working for Hollywood now -- which explains why it announced those original seizures at Disney's headquarters (which still seems like a huge conflict of interest that no one has yet to explain). Oddly, it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on. They simply relied on the MPAA entirely.

All that said, I have to admit that I'm still at a loss as to how this is really fits under Homeland Security's mandate. Defenders of this point out that ICE has long had intellectual property issues under its purview, but those issues were supposed to be focused on preventing counterfeit products from entering the country. To extend that to internet websites seems like a huge stretch. Either way, it seems like Homeland Security must have more important things to work on.

Filed Under: domains, forfeiture, homeland security, ice, seizure

Dutch Anti-Piracy Group, With MPAA's Help, Able To Grab 29 US-Hosted Domains... With No Trial Or Notice

from the everyone-seize-domains-now dept

Now that the US government appears to be endorsing the idea of simply seizing domain names without notice to the proprietors of those domains, it appears that others are doing the same as well. TorrentFreak reports that the Dutch anti-piracy group, BREIN, with help from the MPAA, has been able to get 29 different domain names -- all hosted in the US -- to point to BREIN's homepage instead. The owners of those domains were apparently given no notice and no recourse. It sounds like most of the sites did not host any content but linked to potentially infringing content.

Whether or not you believe that simply linking to potentially infringing content should be against the law, we're seeing yet another example of the simple lack of due process and how this may impact other areas. If BREIN can get US domains shut down, what's to stop other countries from doing the same thing? China doesn't like reporting by an American site about China? What's to stop it from trying to "seize" that domain? Even if we grant the idea that many of these domains were engaged in or encouraging unauthorized copying of works covered by copyright, why should BREIN and the MPAA simply get to shut them down without any sort of trial?

Filed Under: brein, domains, netherlands, takedowns
Companies: brein, mpaa

Khan Academy Buys Cybersquatted Dot Com

from the common-law-trademarks... dept

Earlier this year, I wrote about the Khan Academy, the online operation run by an old housemate of mine, Sal Khan. At the time, he was getting more and more (well deserved) press attention for the project. Since then, that attention has only increased, with Bill Gates giving him a shout out and Google handing him $2 million. But one thing he didn't have, apparently, was the domain name khanacademy.com. He said he was about to get it, but someone beat him to it.

Dennis sent over an interesting story by a guy who helped Sal buy the dot com from the cybersquatter. It's an interesting story of how buying domains works (with a lot of questionable things happening in the background). In the end, they were able to purchase the domain for $2,988. They actually paid $5,000 initially, but the company running the auction later said it detected fraudulent bidding, and lowered the price.

That said, I wanted to point out an important mistake that the guy made -- which may have actually made this more costly. Here's what the guy wrote:

I checked to see if Sal had a trademark. If he had I would have suggested a WIPO action. It would have been a slam dunk. But Sal, busy teaching kids trigonometry for free, hadn't gotten one yet.

And here's the mistake: you don't need a registered trademark in such a situation. Would it help? Perhaps, but it's really not necessary. All you need is a common law trademark, and that would be quite easy for Sal to demonstrate. The UDRP process has regularly said that common law trademarks are sufficient. In fact, WIPO has explicitly stated that no registration is necessary, and has regularly ruled for those holding common law trademarks, so long as they can show evidence as to why they hold a common law trademark.

It's kind of unfortunate that Sal and the author of that article had to go through this other process, as it likely cost them more than a straight UDRP dispute and the money they spent went to whoever squatted the domain. Oh well, perhaps it's just an educational moment -- and one Sal can use in a future video teaching others about trademarks, common law trademarks and the domain dispute process...

Filed Under: common law trademark, domain auctions, domain dispute, domains, trademark
Companies: khan academy

Guy Who Runs Anti-Ryanair Website Forced To Hand Over The Domain Because He Made A Little Money

from the nominetsucks.co.uk? dept

For many years, we've discussed the legality of so-called "sucks sites." These are, generally speaking, sites that people put up about a brand that they've had a bad experience with, that goes by something along the lines of brandsucks.com. While there has been some back and forth, for the most part, people and domain dispute boards have recognized that such "sucks sites" should be allowed. They're not infringing on trademarks, in that they don't, for the most part, lead to any confusion over who is running the domain, or if the company in question actually endorses the site (unlikely in most cases).

So it was interesting to see the news that a guy who ran IHateRyanair.co.uk was forced to turn over the domain name to the company. It was double surprising, because four years ago, we had written about another sucks site, called RyanairCampaign.org that was allowed to keep its domain. So what gives here? Well, it turns out that it wasn't a normal domain resolution process that is normally used over domain trademark disputes. Instead, Ryanair went straight to the registry -- which, in this case, was Nominet, and apparently Nominet's policies are much more stringent. The company even admits this, saying that the traditional UDRP domain resolution process probably would have let him keep the domain, but they decided it offends their stricter policies. Why? Because on the page he had some affiliate links that earned him £322. And, even though he took down the links, and agreed to sign documents that he wouldn't put them back, they still felt it violated their policies.

This is, frankly, ridiculous. Earning a little bit of cash from a website does not automatically make it such that it's just being done "for the money," as is implied by this ruling. Besides with the amount made, it probably didn't do much more than covering hosting fees. This is really an unfortunate decision, and could certainly chill some forms of speech in making it much more difficult to cover your costs in hosting a public advocacy website against a company. Perhaps someone needs to set up Nominetsucks.co.uk. Of course, all is not lost for the original domain holder, who has simply moved his site to IHateRyanair.org, and hopefully to a less ridiculous registrar.

Filed Under: domains, sucks sites, trademarks
Companies: ryanair

Take Two Told To Take A Hike In Its Attempt To Get Bioshock.com

from the late-to-the-game dept

It often seems like big companies tend to win domain dispute rulings over companies that just squat on various domains -- and perhaps that makes sense. So it's a bit of a surprise to find out that Take-Two Interactive has lost its bid to get the domain name bioshock.com, which is currently held by a company that owns hundreds of thousands of domains, Name Administration. The problem? The domain was registered a year before Take-Two filed to register a trademark over Bioshock, for the video game series. Name Administration noted, in its defense, that "bioshock" is not a term that's exclusive to Take-Two, and the arbitration board found no evidence of "bad faith" in using the name.

Filed Under: bioshock, domains, trademark
Companies: take two

Are Domain Disputes Suffering From Arbitrators Arbitrarily Cutting & Pasting Decisions?

from the that-doesn't-sound-good dept

JJ sends over this post concerning some troubling evidence that folks from the National Arbitration Forum, who are involved in domain name disputes, have been doing an awful lot of cutting and pasting from earlier decisions in creating their new decisions, leading to nonsense text being included in the decisions, and raising some questions about the outcomes of certain rulings. For example, the article discusses how the company Woot won a domain dispute for the domain name wooot.com, and the domain was supposed to have been transferred to Woot. Instead, the domain was canceled, and some of the text of the decision talked about AOL and a totally unrelated domain name iaol.com.

In an era of cut & paste simplicity, perhaps this isn't too surprising, but when you go to the trouble of going through an arbitration hearing, you would at least like to think that the decision has been considered carefully -- not sloppily cut and pasted from earlier decisions with apparently little or no review.

Filed Under: arbitration, cut and paste, domains

ICANN Can't Find Evidence Of Domain Front Running

from the still-looking... dept

There have been plenty of stories over the years of domain name registrars "front running" domain names, whereby they take domains that people do a search on, and then register themselves, hoping to sell it to the person who searched later for a higher price. Network Solutions, for example, was accused of this practice, though it insisted that it was only "protecting" the domain from others who might snatch it. ICANN was eventually sued for letting this happen. It appears that ICANN also hired Ben Edelman to look into the problem, and his research has apparently turned up no evidence of such domain front-running anywhere. He notes that this doesn't mean it doesn't happen, but he tested it all over and was unable to find it happening. Considering the vast number of reports and complaints about it happening in the past, does this mean that registrars have cleaned up? Or did Edelman miss something?

Filed Under: ben edelman, domain front running, domains
Companies: icann