Following the The Pirate Bay's return to its original .org domain, the RIAA has demanded that the popular search engine be once again taken down, a request complicated by the fact that there doesn't seem to be much legal precedent to do so.
Guest Post by Mike Masnick on Techdirt
You may have heard recently that after switching many domains, a few weeks back ThePirateBay returned to its original thepiratebay.org domain. It's basically an ongoing game of wac-a-mole, where the entertainment industry freaks out and scares registrars into taking back whatever domain and TPB just moves on. It's unclear what good this does for anyone, but it keeps happening. And with the return to .org, it appears the entertainment industry has basically lost its mind. First, it had one of its lobbying front groups, the Copyright Alliance write a hellishly misleading post attacking Public Interest Registry (PIR), the organization that currently runs the .org top level domain.
It is shocking that a domain name registry in the United States – one that is dedicated to “the public interest” – is allowing a blatantly illegal site to have a home on the .org domain. This is especially disturbing given that the operators of The Pirate Bay have been found guilty of criminal copyright infringement, The Pirate Bay domain names have been seized or suspended around the globe, and even its co-founder, Peter Sunde, has walked away from it. Despite all this, The Pirate Bay seems to have found a sanctuary here in the United States by PIR.
As far as I can tell, there is no court ruling in the US that says any of the above is true. While it's true that a few former operators were found guilty, they served their time in prison and as far as I know, none are involved in the current site. And, as has been pointed out over and over again, the site is basically a search engine. Accusing it of "criminal infringement" makes no sense. Furthermore, while the Copyright Alliance fought hard to get SOPA passed, it failed. US law does not currently require registrars or registries to remove domains just because the Copyright Alliance or the RIAA dislike a site. Sorry: you didn't get the law you wanted, so don't pretend you did.
Torrenfreak further points out that while the Copyright Alliance points to PIR's abuse policy, it conveniently ignores that said policy does not apply to intellectual property disputes, which require actual due process.
Meanwhile, as the Copyright Alliance was whining publicly, the RIAA was sending a letter to PIR basically saying the same thing, and asking it to take down the .org domain. The letter lists other countries where various TPB domains have been blocked, and then notes:
With respect to the U.S, please remember that the infringing nature of The Pirate Bay has been noted in each of the Notorious Market Reports issued by the USTR for the past several years. Per the Google copyright transparency report, over 400,000 infringements have been identified on www.thepiratebay.org, with over 50,000 since The Pirate Bay moved back to its .org domain. This is in addition to the over 3,000,000 infringements identified on its previous alter ego, www.thepiratebay.se. It is well known that The Pirate Bay does not take action in response to notices. In addition, there have been numerous reports recently of malware and other abuse occurring via The Pirate Bay at its various domains.
Of course, it's a bit weird to use Google's transparency report as part of its argument, since that just details accusations, rather than actual evidence of infringement (and, again, I don't know how many times this needs to be pointed out, but TPB doesn't host any content). And, again, the RIAA supported SOPA, but it lost. It should stop pretending it won.
PIR, in turn, forwarded the letter on to TPB's registrar, EasyDNS. EasyDNS then contacted TPB to discuss the possible policy violations, and got back reasonable answers that it was not actually in violation. On the question of copyright, TPB claimed that it now abides by the DMCA:
TPB is DMCA compliant and if TPB receive any DMCA complaints from RIAA they will be investigated and removed if found to be valid. We have not revived[sic] any DMCA complaints from RIAA at all so far this year.
Some may point out that TPB, in the past, regularly ignored (or mocked) the DMCA, noting that as a non-US company, it was not subject to US laws. Whether or not TPB still ignores DMCA takedowns could, arguably, impact if it's abiding by registrar policies, but without a court weighing in, it's difficult to see how a registar should take the RIAA's word for it without more evidence.
The RIAA's letter also notes TPB distributing malware, and so EasyDNS asked about that as well, to see if it violated its terms of service, and again TPB insists that the RIAA is being misleading:
As with every site that are displaying 3rd party advertising trough external ad-networks, sometime bad and corrupt ads slips by, it happens to everyone, here is an example:
As soon as it is discovered/detected on TPB, the ads will be taken down, or the entire ad-tag from where the malware comes, until the issue is resolved. Usually with the help of google webmaster-tools to track down the exact source of the malware.
It has happened twice during 2016, both times when adding new ad- networks, They were taken down directly when detected.
Based on that, EasyDNS properly notes that it has no legitimate basis to takedown TPB's .org domain.
At this time we find no violation of our AUP. Absent either a specific proceeding pursuant to our accreditation as a .ORG registrar or a legal finding in a competent jurisdiction to the Province of Ontario, there is nothing for us to do.
easyDNS will of course always: comply with our contractual obligations - both to the registries we operate under and to our customers; comply with the laws under which govern our jurisdiction (the Province of Ontario, Canada) and enforce our own Acceptable Use Policy.
Thank you for bringing this matter to our attention.
In a blog post, EasyDNS President Mark Jeftovic explains the due process rationale here:
Our opinion in these matters continues unchanged. As a Registrar or as a DNS provider unless there is a clear violation of our AUP or net abuse (which we are competent to detect), taking action against domains based on content or at the behest of third-parties, regardless of their altruism or noble intentions, amounts to having us adjudicate international law. It's not reasonable to expect us to do that and you don't want your domain registrar doing that.
This is the key point. Whatever you believe about TPB -- and many people see it as being horribly illegal, obviously -- due process has to mean something. The RIAA and its friends should not just be able to point to something and say "illegal, kill it!" because they have a fairly long history of being totally wrong about such things. In the past, they've argued that nearly every innovation is illegal, from player pianos to radio to cable TV to the photocopier to the VCR to the DVR to the MP3 player and to YouTube. And over and over they've been wrong about those things. And that's why due process is important, and why it's good to see EasyDNS (and PIR) recognizing this.
Jeftovic, by the way, separately highlights that no one should think of EasyDNS as being "friendly" to bittorrent site operators, as he expects it won't be long until there will be sufficient due process to take down those sites:
We should also mention our Open Letter to Bit Torrent operators, wherein we predict a near-future where due process across borders catches up with technology and when that happens it will be relatively quick, easy and painless for a law enforcement agency in one country (i.e. Sweden) to have the requisite order issued in another country (like Canada, eh) and cause a domain that appears to be flagrantly violating copyright and freeriding on content creators efforts to be shut down.
Ahead of that day, if I were a filesharing site operator I'd be using my time wisely in concentrating my efforts on legitimizing my operations. This would include negotiating blanket licensing agreements with mechanical rights agencies.
In other words, contrary to what some will claim, this is not EasyDNS standing up for torrent sites. It's EasyDNS standing up for basic due process. You'd think that the Copyright Alliance and the RIAA would support due process, but apparently that's too difficult.