Better Business Bureaus Pushing For 'SOPA For Trademarks' On Domain Registrars & Registries

from the bad-ideas dept

Never underestimate the ability of those who over-rely on intellectual property to not just push for greater protections, but to try to pin greater and greater liability on others who they want to rope into their own fights. Phil Corwin has an article about how the Council of Better Business Bureaus, along with the Coalition Against Domain Name Abuse (a motley crew of mostly banks and insurance companies, but with random others like Dell, DirecTV and Eli Lilly thrown in there), are looking to change the Anti-Cybersquatting Protection Act (ACPA) to make it more SOPA-like when it comes to cybersquatting.
Their goal is to enact amendments to the U.S. Anti-Cybersquatting Consumer Protection Act (ACPA) that would expand the law’s coverage beyond domain registrants by creating secondary liability for domain system intermediaries like registries and registrars, increase statutory damages penalties for all targets, and establish a ‘loser pays’ regime that favors deep-pocket corporate litigants.
As with SOPA, they're using pure FUD to make this argument, inflating the "threats." With SOPA, copyright maximialists sought to conflate actual dangerous situations like counterfeit drugs (which were minimal in number) with non-dangerous activities that were more widespread (sharing movies and music). Here, the BBB and CADNA ramp up FUD about how phishing attacks use cybersquatted domains to trick people into handing over their info. Except, as Corwin notes, the actual evidence on phishing shows that it's rarely cybersquatted domains that are used in phishing (in part because companies are already quick to spot those and deal with them). In fact, he points out that the very research the BBB and CADNA are relying on to hype up cybersquatting notes that only 2.3% of phishing domains actually contain a brand or variation of a brand.

And, as with SOPA, the real goal here is to pin liability on a ton of third parties (beyond just registries and registrars) making them responsible if they happen to do business with a cybersquatted domain:
Of course, under CADNA’s proposal this potential financial jeopardy would be faced by parties far beyond the domain registrant, as they also want to “Establish liability against an affiliate, representative, or any other person or entity that is in active concert or participation with the registrant, including but not limited to a domain name registrar or domain name registry.” Potential liability would also accrue to “Internet parking pages, pay-per-click advertising, and other monetization schemes”. In other words, not just domain industry participants but everyone else involved in the Internet business ecosystem, including ad providers and payments processors, would be brought under ACPA jurisdiction if CADNA had its way. As we saw with the rightfully failed SOPA legislation, secondary liability would either vastly expand the potential windfall to litigants or cause these service providers to cut off domains at even the hint of a lawsuit, depriving registrants of the very domain-generated income required to fund litigation defense when they believe the allegations against them are bogus.
While this wouldn't impact the public as directly, it's basically a trademark version of SOPA, more specifically focused on cybersquatting. But even just setting the precedent of greater secondary liability would be a huge problem. Trademark already suffers from a lack of secondary liability safe harbors. Pinning direct liability on third parties for the actions of others is a step in the wrong direction.

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  • identicon
    Adrian, 24 Sep 2013 @ 9:27am

    Corporate State

    When Lawrence Lessig first shifted from fighting copyright abuse to arguing against corporate influence in government, I didn't really get it. The more I read about these kinds of things, however, the more obvious it becomes that corporate influence is at the heart of intellectual property extremism.

    Shameful behavior for a government that's supposed to be of the people, by the people, and for the people.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    out_of_the_blue, 24 Sep 2013 @ 9:40am

    WELL, "in active concert or participation" -- NOT that I'm for this.

    Just pointing out Mike's characteristic mis-characterization and stretch to "the sky is falling!" This doesn't appear more than a wish at present.

    Mike appears to have invented "SOPA For Trademarks"; currently gets all of 47 hits on The Google. Another brilliant phrase, be right up there with... what's that one?

    With indicated additions, this phrase interests me: "Never underestimate the ability of those who over-rely on intellectual property [like a central bank with fiat currency] to not just push for greater protections [like too big to fail banks], but to try to pin greater and greater liability on others [like the $700 billion 2008 bank bailout to rescue real-estate scams plus US gov't guarantees for TRILLIONS in other paper instruments] who they want to rope into their own fights [so that they can grow larger and create QE3 to inflate the money supply without limit]." -- It just seems to fit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Sep 2013 @ 9:52am

    'Pinning direct liability on third parties for the actions of others is a step in the wrong direction'

    and probably the exact reason why it will get through! if there is the slightest way of one company/person being able to get money out of another, for doing nothing and not deserving it anyway, it will happen in the USA! just another step in the direction of the net being taken out of the hands of the public!

    reply to this | link to this | view in chronology ]

  • identicon
    wec, 24 Sep 2013 @ 10:01am

    Can some one tell me why the BBB is invoved with this. There must some part of their business I don't understand.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Sep 2013 @ 10:06am

    Long term planning of SOPA people

    If this idea doesn't make sense to you, here's a look at the long term planning of the people pushing SOPA and SOPA like things such as this.

    -Buy up and apply for a bunch of patents and copyrights and trademarks on common things.

    -Pass super restrictive laws on intellectual property that should guarantee more money will flow to you, even if it destroys the national and perhaps international economy as a whole

    -In a few decades when almost everyone is poor because of your SOPA laws killing the economy, and plenty of people are in jail for criminal infringement for stuff like posting links to websites with infringing content, ignore them all. What matters is that you're rich and a poor economy won't change that! Big piles of money make the laws, and decide what's moral and what's not!

    -When you die, purchase your way into heaven while laughing at all the people too poor to do the same because of your strict IP laws.

    So see, the BBB DOES have a plan!

    reply to this | link to this | view in chronology ]

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