Margie Milam Senior Policy Counselor ICANN 1 ( All views expressed are my own)

Copyright infringement harms Consumers Many Counterfeits violate copyright laws Counterfeit drugs use copyrighted labels and packaging Fake luxury goods violate design copyrights for garments Source code for fake software /games protected by copyrights Phishing websites cause identity theft and financial harm Realistic websites utilized by scammers copy the graphics, look and feel of the bank, which is protected by copyrights Social media networks targeted by scammers to lure consumers through impersonating famous brands 2

Example of a Phish at:

Significant Risks to Consumers In 2007, a Canadian woman died from purchasing counterfeit drugs online According to the World Health Organization, approximately 10% of the world’s drug supply is counterfeits 4

Significant damages caused by counterfeit software sales & illegal downloads Consumers confused and expect manufacturer to provide support and customer service Source of embedded spyware and malware Scammers make more money from malware/spyware than from selling pirated copy WWE estimates that for one pay per view Wrestlemania event, 8600 websites made pirated copies available after the fact 5

Enforcement of the copyright laws protect consumers from scammers Law enforcement agencies lack the resources to timely respond to the volume of infringement over the internet Burden falls on rights holders to protect consumers from harm Rights holders respond through litigation and self help remedies Third party enablers such as online auction sites sued under contributory liability theories WWE shut down 3,200 online auctions of phony WWE products with an estimated street value of $16 million to $33 million. 6

Remedies Deployed in the fight against online infringement Digital Millennium Copyright Act (DMCA) in the U.S. enacted to address massive piracy Notices sent to the ISP Under penalty of perjury that complainant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law ISP receives “safe harbor” from liability for infringement if it takes down the website expeditiously Acceptable Use Policies and Voluntary Take Down Programs (Ebay Vero), YouTube 7

Problems with the DMCA Notices administered by administrative assistants or paralegals not properly trained in fair use issues Overly zealous attorneys take advantage of inexperienced ISP’s by issuing unwarranted take-down requests Send notices where the content involves legitimate gripe sites, commercial speech, and first amendment issues Send notices to service providers not responsible for hosting content, such as domain name registrars Seek account information through broad subpoena powers through any US district court regardless of whether a lawsuit has been filed 8

Analogy in domain names Intellectual Property concerns raised in the launch of new gTLDs Experts in the trademark community convened by ICANN to identify solutions to potential for increased infringement such as an Uniform Rapid Suspension Procedure Learn from experience with the DMCA Proposals include penalties for abusive rights holders “Three strikes and You’re Out!” Reimbursement of costs from abusers 9

Are there solutions to better protect consumers? While current tactics have problems, they are more effective than litigation Uptime for Phishing Sites Reduced Cooperation from Auction Sites for voluntary take down programs (such as the Ebay VeRO Program) result in significant take downs involving counterfeit sales Updating the DMCA to address problems: Immediate Penalties for Abusers Clarification on fair use exceptions Indemnification for Service Providers 10

Is an International Solution Possible? Best practices for standardized self help remedies for online infringement Expedited requests for infringement resulting in significant consumer harm such as phishing, malware, and counterfeit sales Reduction of Costs to Rights Holders Education for ISPs and rights holders on fair use and free speech 11

Questions? Merci Beaucoup! Thank You! 12