The White House has just released the “2013 JOINT STRATEGIC PLAN ON INTELLECTUAL PROPERTY ENFORCEMENT” issued by the U.S. Intellectual Property Enforcement Coordinator (IPEC), and ICANN efforts are discussed at some length. The Report makes clear that U.S. activities within ICANN are regarded as an integral part of the government’s overall strategic efforts against IP infringement. (http://www.whitehouse.gov/sites/default/files/omb/IPEC/2013-us-ipec-joint-strategic-plan.pdf).
The Introduction to the report states that the U.S. plans to expand on multiple action items, including:
- · Protect intellectual property at the Internet Corporation for Assigned Names and Numbers (ICANN). The National Telecommunications and Information Administration (NTIA) and the FBI will work with ICANN, in collaboration with stakeholders, so that new top-level domains do not become new venues for infringement.
The full section discussing ICANN states that the National Telecommunications and Information Agency (NTIA) will continue to lead and coordinate the government’s engagement with ICANN to:
- · further improve the new gTLD program, including through mechanisms for intellectual property protection
- · develop positions within ICANN’s Governmental Advisory Committee (GAC) to advance access to accurate, complete, and publicly available WHOIS data
- · improvements to the Registrar Accreditation Agreement (RAA) between Registrars and ICANN
- · effective contract compliance by ICANN
- · appropriate consideration of intellectual property issues in the context of gTLDs
- · closely monitor adoption and implementation by Registrars of the revised Registrar Accreditation Agreement (RAA)…to ensure that ICANN holds its accredited Registrars to all of the new commitments included in the RAA
The Report also states that the U.S will closely monitor the implementation of new Rights Protection Mechanisms (RPMs), including Uniform Rapid Suspension (URS) for effectiveness – and that it reserves the right “to seek necessary course corrections as affected U.S. stakeholders gain experience with the new DNS environment”.
We would certainly hope that any such review is preceded by a decent interval of time and associated experience before contemplating any tweaks to URS — and that the affected stakeholders to be considered include new gTLD domain registrants, as it remains to be seen whether implementation of the URS will adequately protect their procedural and substantive due process rights. For its part, ICA also intends to monitor and review URS implementation – and to advocate changes if its narrow purpose as a UDRP supplement is not respected by rights holders or arbitration providers.
The Report also alludes to the government’s widespread domain seizure activities, both domestically and abroad. The section titled “Improve National Law Enforcement Efforts to Protect Intellectual Property Rights”, includes this information:
–In June 2010, the IPR Center initiated Operation In Our Sites, the first coordinated and sustained law enforcement effort to target websites that distribute counterfeit merchandise and pirated works. Since the operation’s inception, Federal law enforcement agencies, in conjunction with DOJ, have conducted 13 operations targeting sites focused on particular subject matter such as sports apparel or luxury goods and resulting in the seizure of more than 1,700 domain names of infringing websites and monetary seizures of over $3 million.
−−In April and May 2012, as a result of investigations generated by the IPR Center led Operation In Our Sites, in two separate cases ICE-HSI, working with DOJ, seized over $2 million in proceeds from online sales of counterfeit goods by Chinese perpetrators. The funds were seized from correspondent bank accounts located at the Bank of China in New York under 18 U.S.C. § 981(k), which permits the U.S. Government to seize funds from a foreign institution’s interbank accounts in the United States for forfeiture to the Treasury. This was ICE-HSI’s first use of section 981(k) to seize illicitly-derived proceeds identified as part of an intellectual property rights criminal investigation deposited in a Chinese bank.
And the section titled “Combat Foreign-Based and Foreign-Controlled Websites that Infringe American Intellectual Property Rights” includes this information:
•Operation Pangea is a joint global operation focused on targeting websites offering illicit and potentially dangerous substances to consumers in the United States and abroad. In 2012, Operation Pangea V resulted in the shutdown of more than 18,000 illegal pharmacy websites and the seizure of about $10.5 million worth of pharmaceuticals worldwide.
•In the fall of 2011, the co-founders and other top administrators of NinjaVideo.net, a website offering pirated movies and television programs to millions of users, which is hosted on servers located in the Netherlands and France, pleaded guilty to criminal copyright infringement and were later sentenced to Federal prison. In April and May 2012, in two separate cases generated from Operation In Our Sites investigations, ICE-HSI seized over $2 million in proceeds from online sales of counterfeit goods from the Bank of China in New York.
•Voluntary initiatives by the private sector are intended to help reduce the ability of foreign and domestic websites to target U.S. consumers. IPEC has worked closely with Internet service providers (ISPs), advertisers, credit card companies, payment processors, search engines, domain name registrars, and registries to encourage voluntary steps to reduce infringement.
•USTR has issued three Notorious Markets Lists, which identify foreign websites offering pirated and counterfeit products as part of its annual review of physical and online markets that deal in copyright and trademark infringing goods. As noted, several markets included on those lists have taken action to address concerns.
While typically bureaucratic in its comingling of the important and the mundane — and giving equal billing to such disparate infringements as life-
threatening counterfeit pharmaceuticals and mechanical equipment alongside unauthorized MP3s — the Report nonetheless offers in its entirety a sweeping portrait of the extremely broad scope of the resources and activities dedicated by the U.S. to this war on IP infringement — a war in which ICANN has been assigned a leading role.
The complete report section discussing ICANN follows:
Protect Intellectual Property at ICANN
The expansion of the domain name system (DNS) through the implementation of ICANN’s new generic top-level domains (gTLDs) is an important evolution in the administration of the DNS, which brings with it the need to ensure the new gTLDs take into account and provide for meaningful intellectual property and other safeguards and support the type of innovation and competition that has led to the success of the modern Internet.
Going forward:
Coordinated via the NTIA-administered DNS Interagency Working Group, NTIA will continue to lead the U.S. Government’s engagement with ICANN’s multi-stakeholder processes to further improve the new gTLD program, including through mechanisms for intellectual property protection, and to mitigate abuses of the domain name registration system. Specifically, NTIA will collaborate with all U.S. stakeholders, including intellectual property stakeholders, as well as other Federal agencies, such as USPTO, and FBI and other law enforcement agencies, to develop positions within ICANN’s Governmental Advisory Committee (GAC) to advance access to accurate, complete, and publicly available WHOIS data, improvements to the Registrar Accreditation Agreement (RAA) between Registrars and ICANN, effective contract compliance by ICANN, and appropriate consideration of intellectual property issues in the context of gTLDs.
In this regard, NTIA will closely monitor the effectiveness of the Rights Protection Mechanisms (RPMs), such as the Trademark Clearinghouse and Trademark Claims Service, and the Uniform Rapid Suspension System (URS), that have been developed in conjunction with the new gTLD program to ensure they provide meaningful and effective remedies so that new gTLDs do not become avenues for cybersquatting and infringing activities. NTIA will work through all appropriate mechanisms within the ICANN multi-stakeholder process, and particularly the GAC, to review the effectiveness of the new RPMs, and to seek necessary course corrections as affected U.S. stakeholders gain experience with the new DNS environment. In addition, NTIA will closely monitor adoption and implementation by Registrars of the revised Registrar Accreditation Agreement (RAA), which will include a specific focus on ICANN’s contract compliance capabilities and results to ensure that ICANN holds its accredited Registrars to all of the new commitments included in the RAA.