Copyright Maximalists Come Out Against New TLDs Because It Creates 'More Space' For Infringement

from the the-internet-is-like-a-box,-see... dept

There are all sorts of reasonable points of disagreement over ICANN’s plan to add generic top level domains (.whatever rather than just .com, .net, etc…). Of course, we’ve argued that the whole idea of TLDs is obsolete anyway, and rather than ICANN’s convoluted process of selling each new generic TLD, it should just open things up, so that rather than saying people can register “whatever.com,” they should be able to just register “whatever.” Trademark owners have also complained about the generic TLD efforts, in large part because they’ve seen what happens when ICANN created absolutely useless TLDs like .jobs, that made many companies feel they need to go out and pay to register their name.jobs (leading to sophomorically snicker-worthy sites like http://rim.jobs, which appears to no longer be functioning, though it did for a while).

However, one complaint that simply hasn’t made much sense are complaints from copyright holders over generic TLDs. We’ve seen the RIAA complain that it might lead to more infringement, which appeared to be based on a misunderstanding of how the internet works (shocking) rather than on any legitimate complaint. Of course, Copycense points us to the news that “The Copyright Alliance” (a sort of propaganda/lobbying organization for extreme copyright maximalists) has now come out against generic TLDs as well for the delightfully ridiculous reason that it means “more Internet space would be available to rogue website operators.”

Apparently, the internet isn’t a series of “tubes,” but it’s a box with limited space, and this will expand it. Or something.

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Comments on “Copyright Maximalists Come Out Against New TLDs Because It Creates 'More Space' For Infringement”

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65 Comments
Jay (profile) says:

Sandra

“Mei-Lan Stark, Senior Vice President of Fox Entertainment Group, appearing on behalf of the International Trademark Association (INTA), testified to problems her company has already experienced due to abusive domain name registrations ? including the registration by third parties of Fox trademarks and channel identifiers to misdirect consumers searching for a Fox channel to pornographic websites.”

Hey Fox, your term does have other meanings. You don’t own the word.

Other than that, her site is really bad for rhetoric. It just hurts that she can’t really say anything other than “Piracy is bad” with no actual data to back her up.

btr1701 (profile) says:

Re: Rogue website operators

> At least they didn’t call them “rouge” website
> operators – that label seems to be going around
> a lot lately.

Even more funny when you realize that “rouge” is a color– pinkish-red. They apparently mean “rogue”, but I get a chuckle out of the people complaining that there are too many pink web sites out there.

Trails (profile) says:

After R'ing TFA

I’m very confused after reading this article. What’s the problem exactly they’re complaining about? Trademark infringement sure, but that’s a problem today. I don’t get how this makes it worse. Sure there would be additional ways to infringe, but someone who’s going to infringe on a trademark is going to infringe. The idea that additional domains will lead to more trademark infringement seems like quite the leap. As they say on wikipedia, [citation needed].

The allusions to copyright as well as trademark is bizarre. Are they suggesting TPB would be more successful if it had thepiratebay.movies as its domain? That’s preposterous on its face.

Finally there’s the vague quote about domain registration proxies, which states among other things “there are certainly legitimate reasons for using proxy services” but goes on to mention “experience and data demonstrate that such registrations are particularly attractive to spammers, copyright thieves, fraudsters and other wrongdoers.” What does this mean? There are millions of legitimate sites registered through domain proxies. Because something is attractive to “spammers, copyright thieves, fraudsters and other wrongdoers” does not make the thing itself a problem. Regardless, they suggest no course of action, so one can only interpret this as ludditical hand wringing.

Further how this relates to gTLDs is not specified, and it seems to be just grasping at straws.

The importance of domains are overstated. Copyright and trademark infringement abound currently, and this article fails to demonstrate at all how gTLDs will make the situation any worse.

Anonymous Coward says:

Re: After R'ing TFA

My understanding is this: If you’re a cosmic cop in an expanding universe you’re job gets harder every second because your beat becomes larger while the speed limit stays the same. Oh sure, there are the same numbers of stars and pesky black holes but it’s a bigger problem now.

Trails (profile) says:

Re: Re: After R'ing TFA

To use your analogy, they’re complaining about proposed horizontal expansion while ignoring current vertical expansion.

Infringement is driven by demand, not domain availability.

“Let’s setup a torrent site! We can call it wickedtorrents.com!”
“Blech, it’s taken.”
“That sucks, we should just go and buy dvd’s instead.”

aldestrawk says:

Re: Re: Re: After R'ing TFA

I don’t disagree with you. I was, subtly, making fun of them with the comic, oops… cosmic, cop analogy. Their paranoia is driven by a perceptual fallacy. Oh no, there is more space, so there are going to be more bad things coming to fill it. It doesn’t make sense, because when I look for faux news, I will go to fox.com and not fox.xxx.
The question comes up what is the use of a TLD these days, to locate something? It is an organizing method, that allows someone to narrow their search and evaluate what sort of entity a website represents. There are two ways I can think of to, explicitly, use a TLD for searching:
1). enter a name (partial URL) in the address bar and let the browser fill in the rest with a default (usually HTTP and .com).
2). Narrow a search on a search engine by specifying a particular TLD or sub-domain.
There is undoubtedly an implicit use of TLDs by search engines for ranking but I don’t know what they do.

I don’t like the idea of allowing generic TLDs because you lose the ability to evaluate the website as being within a category. I also don’t want to be forced to search for Sarah Palin within “fox.com” as well as “.fox”. Redundancy does not make searches easier here, because one instance of a name may be different than another. Maybe that is what the Copyright Alliance is paranoid about. They feel that trademark owners have to control all instances of their trademark names within the domain name space. That doesn’t make sense, in part, because trademarks are already limited to being within a certain category or categories that must be spelled out as part of the registration process. In general, I don’t see a larger namespace as a problem because I, personally, don’t want to have to search multiple categories of TLDs to find something. The default is usually “.com”, and that is fine with me. If I am trying to find the whitehouse where the US president lives, I won’t pay attention to or search on whitehouse.com, whitehouse.jobs, whitehouse.travel, or whitehouse.xxx. I know to look for whitehouse.gov. I, nor anyone else should care what is at “.whitehouse”.

anymouse (profile) says:

Re: After R'ing TFA

Hmmm …. “experience and data demonstrate that such registrations are particularly attractive to spammers, copyright thieves, fraudsters and other wrongdoers.”

FTFY …. “experience and data demonstrate that money is particularly attractive to spammers, copyright thieves, fraudsters and other wrongdoers.”

Obviously we need to eliminate Money and the spammers, copyright thieves, fraudsters, and other wrongdoers would have no motive to do anything….. Sometimes these things are so simple and the politicians just aren’t willing to accept the easy solution. Obviously they should all be pushing laws to eliminate currency exchange in any form as it is the root of all evils….

Where’s that foil, I need another layer on my beanie….

Anonymous Coward says:

These folks need counselling for obsessive behavior.

Y’know what else they should worry about? People having more babies. That grow up to be more people. That will likely start infringing on something somewhere somehow.

And electricity, the very engine of infringement.

And content producers. The more they produce, the more infringement will happen.

Also air, sunlight, gravity, atoms and molecules. Possibly germs as well.

Dark Helmet (profile) says:

Re: These folks need counselling for obsessive behavior.

You’re not thinking big enough. I’ve seen no evidence to suggest that God the almighty Yahweh had an authorized business model patent covering the creation of humans and then guilting them into giving money to his churches.

Who can we get to sue God? I’m pretty sure the RIAA would have a go….

FUDbuster (profile) says:

Of course, Copycense points us to the news that “The Copyright Alliance” (a sort of propaganda/lobbying organization for extreme copyright maximalists) has now come out against generic TLDs as well for the delightfully ridiculous reason that it means “more Internet space would be available to rogue website operators.”

You left off the end of the sentence: “First, more Internet space would be available to rogue website operators for new abusive registrations.” Adding gTLDs would do this, so I don’t see how the claim is so ridiculous.

Apparently, the internet isn’t a series of “tubes,” but it’s a box with limited space, and this will expand it. Or something.

The limited number of gTLDs does create a “box with limited space” in one sense. Adding more gTLDs makes the box bigger.

I’m not saying I agree with them and that these new gTLDs need to be stopped. But at the same time, I don’t think their claims are ridiculous on their face.

Not an Electronic Rodent says:

Re: Re:

You left off the end of the sentence: “First, more Internet space would be available to rogue website operators for new abusive registrations.” Adding gTLDs would do this, so I don’t see how the claim is so ridiculous.

Networking 101: “Internet space” is limited by the number of IP addresses NOT the number of DNS names (which is already infinite for all practical purposes).

If they want to start a campaign of lobbying against IPv6 using this argument it might actually be logically consistent though no less dumb – not that they’ll get very far with that either….

So no, it’s yet another “EVERYTHING IS INFRINGEMENT IF IT MIGHT CHANGE HOW WE DO THINGS” argument from people who either don’t, or choose not to, understand the technology and is logical in no way.

Anonymous Coward says:

Re: Re: Re:

Networking 101: “Internet space” is limited by the number of IP addresses NOT the number of DNS names (which is already infinite for all practical purposes).

In other news, the MAFIAA starts buying up all unallocated IP addresses – based on the “no more IP addresses, no more torrent sites” idea.

Josh in CharlotteNC (profile) says:

Re: Re:

“First, more Internet space would be available to rogue website operators for new abusive registrations.”

Adding a new folder (directory) on my 1 terabyte hard drive does not mean it now holds more than 1 terabyte.

All a domain name is, whether a top level one or not, is a organizational container and a pointer to a resource. They are called URLs – Uniform Resource Locators.

FUDbuster (profile) says:

Re: Re: Re:

Adding a new folder (directory) on my 1 terabyte hard drive does not mean it now holds more than 1 terabyte. All a domain name is, whether a top level one or not, is a organizational container and a pointer to a resource. They are called URLs – Uniform Resource Locators.

The issue here is domain names. Imagine if popularsite.com has been having problems with squatters abusing similar domains like popularsite.net and popularsite.org. Now with 200 more domain names comes potentially 200 times as many problems with cybersquatters.

Anonymous Coward says:

Re: Re: Re: Re:

What problems? Peoples’ bookmarks aren’t going to spontaneously change. Search engines aren’t going to consider the cybersquatters’ ad farms to be relevant content. The only ones who’d even notice those “similar domains” would be people who made errors while manually typing in URLs. They’d get a bunch of ads instead of a 404 error. Is that really such a drastic issue?

DannyB (profile) says:

Re: Re: Re: Re:

With the existing TLD’s, I can infringe trademarks in a large enough number of ways to be effectively infinite. It just takes a bit of creativity. (Something sadly lacking, it seems, by those who always want to restrict creativity in the name of protecting creativity.)

So adding new TLD’s does not create new trademark problems. Owners of trademarks will either stumble across trademark infringements, or they will have to actively search them out. Nothing changes with more TLD’s.

Anonymous Coward says:

Re: Re: Re:2 Re:

But the more creative you get, the less likely the confusion, in most cases.

For example, if you have to stretch to get thewebsitethatisreallyamazon.com, it’s going to be less effective than amazon.com or .amazon at convincing people you’re affiliated with Amazon.

I think it’s funny the extent to which people are willing to take any position that is contrary to pro-trademark folks, but saying new TLDs doesn’t create more trademark problems is a stretch.

aldestrawk says:

Re: Re: Re:

There’s no such thing as “more infinity”.

Actually, there is. Georg Cantor proved in the late 19th Century that there are infinite sets that are larger than other infinite sets. It drove him, literally, insane.

The fallacy here is that any trademark is contained within a particular set (category of usage) and should not be concerned that they cannot control all the instances of their trademark in the whole universe. TLDs are categories. A trademark owner should only be concerned about the TLD appropriate to their trademark category. gTLDs are a homogenized mess, and owners cannot control the names in this mess. I would argue they shouldn’t even be concerned.

Anonymous Coward says:

Re: Re: Re: Re:

Except there is not some limitation on TLD’s appropriate to a particular trademark category, and many trademarks are used by businesses across multiple categories.

Further, what will the supposed “category” be for these personalized TLDs?

What is the “category” for .Microsoft, other than stuff related to Microsoft?

aldestrawk says:

Re: Re: Re:2 Re:

Are there any trademarks that pertain to all possible categories. Can I not manufacture and sell underwear, made from some nano-technology designed fabric, and call my brand Microsoft? Once having done that can I not register the .microsoft domain even the the (mostly) software company is 10,000 times bigger? I am pretty sure Microsoft is registered for “software” and not “soft wear”.
The generic TLDs have no fixed category, and that emphasizes my point. Trademark law cannot guarantee a company has exclusive right to any particular name. Because of that, I am not going to search for something assuming that .microsoft pertains to the company Bill Gates co-founded, and nobody else should either.

Anonymous Coward says:

Re: Re: Re:3 Re:

As for trademarks pertaining to all possible categories, there are certain marks use in connection with a vast variety of goods and services. There is also the concept of trademark dilution, which is not relegated to certain categories of goods/services.

So, no, under US law and the law of many other jurisictions, you can’t sell underwear under the MICROSOFT brand.

Aside from that, your logic does not make any common sense to me. Even assuming it were legally permissible for a company to use MICROSOFT in some capacity, how does that negate the likelihood that people will associate the .MICROSOFT TLD with Microsoft Corporation?

Just because something is *possible* doesn’t mean it is likely, or that people shouldn’t expect the opposite.

DannyB (profile) says:

Re:

Making the naming system more flexible does not increase the number or capacity of existing server hardware, nor the bandwidth or connectivity of the underlying network.

Imagine a carton of one dozen eggs. You can apply a six letter name to each egg to mark it. Now if I allow you to mark eggs with a twenty character name does not increase the size of the box.

Not an Electronic Rodent says:

Missing something?

Have I misunderstood how trademarks work? I though they only applied in the area of commerce the trademark was sought in. I.e. if you sell “Crappo ™ Toilets”, you don’t theoretically have a trademark claim if someone decides to create “Crappo Air Transport”?

So unless I’m wrong about that the argument:

The worry is that unscrupulous actors will use the expanded gTLD space to register domain names using well known trademarks, or variations on such trademarks, and that those sites will be used to defraud consumers, and harm the value of the infringed upon brand.

is a steaming pile or horse manure.

If someone uses the same name in another TLD, if they are in the same business as you or trying to pass themselves off as you it’s infringement, if they’re doing something different it’s not infringement no matter how much you might dislike what they are doing…. right?

Or am i guilty of using logic and sense applying to a “But! But….. INFRINGEMENT!!” argument?

In a slightly oblique point I was under the impression that the number of possible infringing sites was more likely to be limited by failing to move to IPv6 than adding to the already infinite-for-practical-purposes number of DNS names possible. When do we see the Copyright Alliance lobbying to prevent THAT is what I want to know?

Anonymous Coward says:

Re: Missing something?

You seem to be assuming that people *won’t* registerd the same name with a different TLD in an attempt to misdirect consumers.

It is very common for people to register identical trademarks (or slight misspellings) in an attempt to misdirect consumers, engage in phishing operations, etc. For example, maybe you get an email from Joe@morgansstanleybank.com asking for your password or something.

So, the worry is that expanding the realm of available TLDs simply creates a new opportunity for deliberate infringers to snap up a famous trademark variation to use for nefarious purposes, and a new cost/obligation for trademark owners to register their mark variations with that TLD before they get misused (e.g., http://www.youracount.morgansstanley).

Now, the twist here is that the new gTLDs cost a lot of money to register/operate, so I’m not sure if you’re going to get the same type of cybersquatters and other deliberate infringers you get with most TLDs.

aldestrawk says:

Re: Re: Missing something?

The problem you are addressing is “nefarious purposes” such as phishing. Relying on trademark law to address this is a bad solution. If a website doesn’t match what a user expects, the user then looks to correct that mistake. If I type in whithouse on the address bar, I get whitehouse.com which clearly has nothing to do with the president. If I search for “whitehouse” on Google, the first entry in the response is “whitehouse.gov”. As long as you can find what you want without too much difficulty, everything is fine. If a website is so close to what you are looking for that it fools you, then fraud comes into play. There are legal and technical solutions having nothing to do with trademark infringement. My banks have a visual site identifier, unique to me, that I see before I enter a password.

Anonymous Coward says:

Re: Re: Re: Missing something?

Why is trademark a bad solution? I’m talking about people trying to pass themselves off as someone/something they are not. That is the heart of trademark law/policy.

I know from experience trademark-based mechanisms are often the best/fastest solution to combat such blatant misuses.

Assuming that user’s will be able to tell something if “phishy” seems like a much, much worse solution.

Regardless, that has nothing to do with whether expanded TLD availability will create greater opportunity for such misuses. It will.

Maybe the bad guys won’t take such opportunities due to higher costs, and maybe it wouldn’t be a good enough reason to stop expansion (of course, I haven’t yet heard a really good reason for expansion).

aldestrawk says:

Re: Re: Re:2 Missing something?

I would like to emphasize the distinction between pretending to actually be some other company or individual, as in phishing, versus just using the trademark name or something similar to a trademark name to cash in on the better reputation or more known name to sell your own stuff.
That first kind of nefarious activity is fraud and is covered under other laws so using trademark law is not necessary. For websites, like banks, that really need to be secure, there are technical solutions; use of HTTPS along with digital certificates and use of graphical site identifiers before supplying a password. This is really a more serious crime than just trademark infringement, so why use trademark infringement laws to fight it? Otherwise, you can be reduced to arguing over trivialities about how little a difference there can be in spelling a word before it represents trademark infringement. This is what I meant by saying relying on trademark law is a bad solution.

I am not arguing that trademark law should be abolished. However, it does have a particular problem on the internet. Trademark law allows two, or more, instances of the same name if the products or services are not in the same category, or categories, as specified during registration. On the internet, you don’t necessarily know until you arrive at the website what that URL represents. So who has priority on a domain name? Trademark law is not a sufficient solution to solve this problem. In this context, arguing over spelling differences seems especially trivial. Add in the amount of time wasted over things like Godzilla versus bagzilla (Sears) and Godzilla versus Davezilla (who didn’t even sell anything) and the whole issue starts to become absurd.
I would argue that adding specific TLD like .travel have the potential to help clear up trademark fights over the same word being used for different things. You can separate them with more TLD categories. I do have reservations about this apart from trademark issues. On the other hand, gTLDs will not help, because a generic TLD is not stuck in any sort of category. The trademark argument again either sort of expansion is that these companies will have to repeat their fights for each new TLD. This doesn’t make sense because the law cannot resolve all conflicts anyway and users simply don’t search using top level domains explicitly. They generally rely on .com or whatever Google returns for a keyword search. Adding more TLDs won’t make any difference.

Anonymous Coward says:

Re: Re: Re:3 Missing something?

You certainly *can* distinguish between intentional phishing-type misuses of trademarks and unintentional confusing uses of trademarks, but I’m not sure why you *are* doing so.

There are many reasons trademark law makes sense as a tool in such scenarios. Confusing use of a trademark falls at the heart of trademark law, whether or not there may be other legal torts or crimes that fit the bill as well. Private parties can bring enforcement actions under trademark law, whereas they cannot bring criminal prosecutions. There is a higher burden of proof for showing a crime is being committed. A civil fraud cause of action requires (in many jurisdictions) showing that the plaintiff was decieved, and the trademark owner is not the party being deceived. I could probably list many more reasons.

I am at a loss as to why you think trademark law *shouldn’t* be used in such situations, except maybe you just don’t like trademark law in general.

The fact that it might be possible (although it is much harder) to use non-trademark legal theories to take legal action agaisnt such fraudsters is not a reason in itself to make trademark theories unavailable, is it?

Also, while I encourage the use of non-legal (not to be confused with illegal) means to avoid such fraud, your suggestion of using https missed the point, I think. Putting the burden on lay customers to make sure they are always at the right site that uses “https” in the URL is not a successful strategy alone.

Pointing out a few examples of questionable cases does not make the application of trademark law to domain names “absurd” in general, nor does the fact that “the law cannot resolve all concepts.”

Anonymous Coward says:

The entire purpose of new TLDs...

…is registrar revenue. That’s it. No matter what ICANN says, no matter what the registrars say, no matter what anyone says: the entire process has been carefully engineered to maximize revenue.

We have come a long way from the one-entity one-domain rule that was the de facto way things were done Once Upon A Time, when it was recognized that it’s quite impossible to ‘own’ a domain; one merely is permitted to use it by the mutual consent of everyone else on the ‘net, as it’s a resource that belongs to everyone and noone. Now we’ve reached the point where spammers routinely register domains 10,000 at a time, burning through the namespace and rendering those permanently unusable by anyone.

(“permanently”? Of course. Once a domain has been owned by a known abuser, it can, should, and will be permanently blacklisted. Such entries should never be removed because — thanks to ICANN — there’s no way to know what the alleged new owner isn’t really the same abuser.)

Greevar (profile) says:

You've hit on something Mike.

“Apparently, the internet isn’t a series of “tubes,” but it’s a box with limited space, and this will expand it. Or something.”

Well if you think about it, it is like a box. Internet addresses, bandwidth, and domain names are all finite (well, maybe not domains, but you get the picture), but they are also reusable. Like a room, or a box, you can only fit so much in there at any specific time. In order to allow more to use that “space” you either need to get the current occupants to use it less or make it bigger. If “space” is extremely scarce, it can be held in exclusivity and it helps keep out the riff-raff. If you make room for everyone, then the richest companies on the internet will eventually be outnumbered.

That is completely devastating to their desire to put down every site on the web that makes it possible to transmit protected works. Do you think the hydra is intimidating now? Imagine there being one hundred or one thousand times more sites than there are now? It would make their current strategy even more impotent against their perceived enemies. They don’t want the internet to get bigger, it just makes their effort to keep their works in false scarcity even more improbable.

DASHWORLDS (profile) says:

Copyright and anything goes

The issues of trademark and domain abuse etc have long been entrenched in the over 200 million domain names already registered. Should these issues, first and foremost the remit of law courts, be reason to limit Internet address expansion?

The number of TLDs is not the problem. Rather, the problem rests with a minority of determined users.

By its nature, the Law always finds itself one or two steps behind innovation (ie: no 50 MPH speed limit or drink drive enforcement team necessary when riding your brand new chariot through the Roman Forum in 44 BC). Ultimately IP law will catch up and make resolution of the issues a much simpler and cheaper process.

In any event and with regard to Techdirt’s points on open TLDs, sites like Dashworlds.com already provide an unlimited range of free domains and TLDs in the format “sports-com“, “rock-music” and “high-heels” (and even using Facebook Emoticons to register addresses such as “♫♫-♫♫”and “❤❤-❤❤”) that’s totally outside the realm and control of ICANN.

F. ICANN says:

Stop ICANN

The characters to the right of the last “.” dot are supposed to represent a large, did you hear what I said, LARGE category, commercial, network, organization, etc. NOT a small category or just mix-match “items” like .orange .lemon .cars etc. to do so is to make an utter mess out of the naming structure of the internet. By far money is the big motivation and push, “Get Your .crap domain TODAY!” “Register NOW” “Just $12.99!” not structure and organization of the internet and ICANN is the most obnoxious rich self-serving quote unquote “nonprofit” organization to ever exist. Have fun running out to spend $1000s to “protect” your trademark – what a racket – sounds like organized crime.

rishidevdas (user link) says:

I dont Understand

If you want to make a good site with rich content why the hell do you need .travel or .spa or .redlightarea TLD’s.
It is true that in order to protect a trade mark a small part of fortune always ends up in grave to protect it and every time a new TLD is hatched some more money slips out. But if you watch out closely, this small money is a hell lot of fortune to the Internet Organization. The initial 50 days clear out generates billions of buck world wide for a single TLD.
I dont think that “.” dot “nerd” domain will bring out a y diference. If your contect is good enough you are sure to win the race, be it be .com, .net or .org. Sometime the .info magic is also undeniable !!!!

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