Published Date: 02-24-16

Recently, Donuts, a domain registrar that manages new top-level domains such as .movie and .theater, forged a voluntary agreement with the Motion Picture Association of America (MPAA) in which the MPAA – under very specific conditions – can act as a “Trusted Notifier” and alert Donuts when a site using one of their domains is engaging in piracy.

The conditions of the agreement require the MPAA to provide clear evidence of large scale piracy – and in the end, Donuts has the final say in determining whether or not the domain registrant has violated Donuts’ Acceptable Use and Anti-Abuse Policy. When the MPAA flags a website that is engaging in piracy, the agreement requires a deeper investigation into the website in question, statements from the operators of the site, and a collaborative effort between all registrar partners.

Pretty straightforward and reasonable, right?

Some people think so. Here’s Internet Corporation for Assigned Names and Numbers (ICANN) President Fadi Chehadé:

Paul Vixie, CEO of Farsight Security and member of the internet and open source technical communities, added:

“We need responsible parties to take voluntary, cooperative action against illegal activities online. I see programs like Trusted Notifier as an ideal step toward making the internet safer.”

This is great! A voluntary agreement among cooperative partners to prevent large-scale piracy!

Shockingly, not everyone is pleased. Some have even gone so far as to call the agreement a threat to free speech.

Perhaps the nature of this agreement requires further explanation.

Donuts is a private company whose business includes releasing domain suffixes. Everyone is familiar with these – .com, .org, .net, .edu, and others. Recently, new suffixes have sprung up that more closely reflect the nature of the website. For example, a few years ago we saw new .biz domains, which denoted small or medium-sized local businesses. In much the same way, Donuts has made available domains like .movie with hopes that filmmakers will host their movie’s website on these domains. The Gods of Egypt trailer that debuted during the Super Bowl is currently hosted at www.godsofegypt.movie. How cool is that?

A voluntary agreement is actually very simple – we, as individuals, make these agreements every day. Imagine you own a small business and I own a 24-hour diner across the street – and someone keeps coming in the middle of the night and painting graffiti on your door. You come over and ask me to let you know if I see anything, and I agree. We’ve entered into a voluntary agreement – if I see anyone committing a crime and vandalizing your property, I’ll give you a heads up. Maybe I’ll even take a picture and send it over to you.

This example is a simplified and distilled version of the agreement between Donuts and the MPAA – with Donuts owning the small business that is being tagged with graffiti.

So how can this be construed as a threat to free speech? Mitch Stoltz of the Electronic Frontier Foundation (EFF) has said that the Donuts/MPAA agreement opens the door for similar deals, “aimed at other ‘illegal activity,’” which “could be [a website] that contains blasphemy, ‘hate speech,’ criticism of government officials, or photographs of a woman’s uncovered legs or arms.” Stoltz, a Senior Attorney at the EFF, may not know what it means when you place quotes around a phrase like “illegal activity”. Mitch, it may surprise you, but piracy is, actually, illegal. You know that free speech rights have no bearing on this issue.

We’ve said before that there are many among us in the creative communities who are supportive of certain EFF initiatives, but we continue to shake our heads at their persistence in defending piracy at all costs – including this doomsday censorship scenario that they roll out time and time again.

The “slippery slope” argument, which is an insult to creatives who are having their work stolen, has no place in this discussion. We’re talking about real criminal activity prohibited by US law, not oppressive censorship from some rogue government agency. This is an important distinction when talking about free speech rights – because the First Amendment is about protecting our ability to form and distribute ideas, unhindered by government censorship.

It has never been about guaranteeing your right to rip someone off. If Donuts was a commercial landlord and one of its tenants was using that space to conduct illegal activity – Donuts would be well within their rights to terminate their lease with the storeowner. No one would construe that decision as a violation of the rights of the people who were hoping to patronize that illegal business. That would be absurd.

So why does the EFF insist on defending piracy? Do they know that it is illegal? Do they believe that it should not be? Only the EFF can answer those questions.

For us, we believe that voluntary agreements between responsible stakeholders in the internet ecosystem – including content creators, domain registrars, advertisers, ISPs, search engines, and others – are reasonable, practical measures that make a real difference in curbing the (still illegal) for-profit digital theft of our creative works.

And unless you’re a sucker for scare tactics and misinformation, you probably agree with us.

Ain’t Donuts grand?

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