Washington Legal Foundation has long supported industry self-help initiatives, including those aimed at protecting intellectual property rights. The WLF Legal Pulse, for instance, has highlighted industry efforts to self-police copyright infringement and reduce frivolous patent litigation (for example, here and here). On the copyright front, as we’ve previously discussed, websites that facilitate or traffic in unlawfully copied entertainment content, such as cyberlockers, cost the creative industry millions of dollars each year. The latest market-based effort to combat copyright theft is a voluntary agreement between the Motion Picture Association of America (MPAA) and Donuts, Inc. (Donuts). According to the agreement signed on February 9, Donuts, the world’s largest domain-name registry, will designate MPAA as a “Trusted Notifier” and treat MPAA referrals of large-scale piracy expeditiously and with a presumption of credibility. Should Donuts find no holes in an MPAA request, it will suspend or terminate the domain.
The agreement creates a rigorous process that MPAA must navigate before suspension or termination of a domain. Each referral must include a statement that MPAA’s members authorized it to submit the referral, a detailed description of clear and pervasive copyright infringement occurring on the domain, and a non-exhaustive list of the laws being violated and explanations as to why the target’s actions violate those laws.
In addition, the MPAA referral must be accompanied by: a statement that, prior to sending the referral, the MPAA contacted or attempted to contact the registrar of record and hosting provider, along with a description of any response it received; a statement that the referral was submitted with a good-faith belief that the information it contains is true and accurate; and a statement that the referral was subject to human review, not based on automated internet monitoring. Finally, the MPAA must make a good-faith effort to determine whether the domain is operating with false “Whois”—or stored user registration—information.
Upon receipt of any qualifying referral from the MPAA, Donuts will undertake an expedited review process. Donuts will coordinate with the appropriate registrar and determine whether the domain is devoted to clear and pervasive copyright infringement. Should Donuts deem a violation of its Acceptable Use and Anti-Abuse Policy has occurred, it will, within its discretion, suspend, terminate, or place the domain on registry lock, hold, or similar status. However, if Donuts has concerns over the nature of the reported abuse or receives alternative instructions from law enforcement, it will provide a written explanation promptly to the MPAA and give it an opportunity to supplement the referral. Absent exceptional circumstances, Donuts will inform the MPAA of its decision within 10 business days of a referral.
The considerable steps MPAA must pursue prior to a website losing its domain name lend the agreement credibility and should allay any concerns that content creators will easily or frequently invoke it or do so in a manner that would chill fair use of content. The fight against institutional copyright infringement has been compared with the game of “whack-a-mole,” with pirated content popping back up soon after being taken down. But with major advertisers and the largest domain-name registry now onboard, the chance of keeping the moles permanently in their holes has significantly improved.