Before the OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE Washington, DC 20508

In the Matter of ) ) 2020 Review of ) Docket No. USTR-2020-0035 Notorious Markets for ) Counterfeiting and Piracy )

Reply Comments of the Internet Infrastructure Coalition

Pursuant to the request for comments published by the Office of the United States Trade Representative (USTR) in the Federal Register at 85 Fed. Reg. 62,006 (Oct. 1, 2020), the Internet Infrastructure Coalition (i2Coalition) submits the following reply comments concerning the 2020 Review of Notorious Markets for Counterfeiting and Piracy. i2Coalition is made up mainly of small to medium sized businesses which are cloud providers, data centers, web hosting companies, registrars, registries and other foundational Internet enterprises.

I. Introduction

The i2Coalition appreciates this opportunity to address some of the comments made about the infrastructure industry generally, and about specific providers within the Internet’s infrastructure in particular. Our response focuses on two aspects: discussion about the Domain Name System (DNS) ecosystem; and comments made about specific companies within the Internet’s infrastructure that are called out by name by other commenters. Our responses on these two matters underscore the key principle set forth in our initial comments that Internet intermediaries should not be considered notorious markets.

II. DNS Ecosystem

The i2Coalition responds below to three separate filings which addressed the DNS ecosystem.

REACT REACT has raised concerns about domain registrars within the DNS ecosystem, and named a list of domain name providers that they say are not entirely cooperative with requests for takedowns when infringement is noted. The insinuation is that these providers do not have policies in place to address abuse from customers, and that they are not responsive to legitimate query. Such overbroad generalizations bely a perhaps willful lack of understanding of the significant efforts by most domain registrars to react in a timely manner to legitimate abuse complaints. Indeed, each of the listed providers have operating practices and policies of engagement in accordance of the law, and moreover they are required to do so in order to maintain their accreditation from ICANN. For the IP claims that REACT seems focused on, the UDRP system (as REACT mentions) remains the best remedy for handling instances of abusive domain names bearing the trademark of a rights holder.

Recording Industry Association of America (RIAA) The RIAA writes extensively about problems that they see with both diminished access to domain registration data, as well as the use of privacy and proxy services for such data. The i2Coalition understands the frustration of the RIAA in dealing with infringement issues, and agree that infringement should be swiftly resolved. However, as part of the ICANN community we are also very aware of, and realistic about, the pace at which multistakeholder processes work. An inclusive and collaborative policymaking environment like ICANN requires significant and sufficient time to discuss, create, validate, and implement rules that will affect the entire Internet, especially when all voices have an equal spot at the table. We appreciate the honest, principled debate underway that is focused on developing these rules, and the genuine efforts that all the various constituencies, including the intellectual property groups, have devoted to the process. The i2Coalition looks forward to the successful completion of these multistakeholder deliberations and the final output from the Expedited Policy Development process.

Motion Picture Association (MPA) MPA focused attention in their comments on stakeholders in the Internet ecosystem – including hosting providers, Open/public DNS providers, cloud services (including reverse-proxy and other anonymization services), advertising networks, payment processors, social networks, and search engines, and notes that providers “ should actively seek to reduce support for notoriously infringing sites such as those we have nominated in these comments, including through voluntary initiatives aimed at combating online content theft.” O n this we can agree, and can assure the MPA that players within the Internet ecosystem, including those named by the MPA, work hard to do just that, and have even collaborated with the MPA themselves on some voluntary initiatives.

It is through this frame that we wish to renew the distinction made by i2Coalition in our initial comments. I nfrastructure services are intermediaries, not markets. The purpose of the Notorious Markets list is not to shame infrastructure companies into changing their policies, but to identify markets where such infringement takes place. The adequacy of the actions taken by intermediaries is clear, as they are not only abiding by the law, but fundamentally going above it in providing ways for rights-holders to remedy the infringement.

III. Discussion of Specific Internet infrastructure Providers

The i2Coalition takes issue with the naming of several organizations in certain of the filed comments.

Edge Providers A number of inaccurate statements and representations were made in this docket by the three parties listed above (REACT, RIAA, & MPA) about Internet infrastructure provider Cloudflare in particular, an edge and cybersecurity company. Select parties mischaracterized the Cloudflare technology. Cloudflare does not provide any hosting capabilities, and mostly provides content delivery network (CDN) services, which do not have the same legal obligations as hosting. Even when the technology is described correctly, as in the MPA brief, we must note that Cloudflare goes beyond its legal obligations and executes abuse reporting practices, which includes the deployment of its Trusted Reporter program and other automated systems, to properly work with stakeholders, especially rights holders, and quickly address concerns.

Domain Registrars Companies including Openprovider, Namesilo, Namecheap, GoDaddy, Dynadot, Enom, Name.com, and Wild West Domains were listed by certain parties, in particular REACT, as broadly not being cooperative on anti-abuse efforts. The i2Coalition takes issue with and strongly disagrees with these characterizations for the reasons stated above in Section II.

IV. Conclusion

The i2Coalition wishes to amplify the request made in our initial comments that USTR continue to recognize the concerns and efforts of neutral intermediaries, such as edge providers and domain registrars, who themselves own intellectual property and value its protection, and continue to develop and implement methods of thwarting online piracy. We urge USTR, in reviewing and distinguishing among the variety of service providers and other entities operating in online markets, to remember that neutral intermediaries are not notorious markets.

Respectfully submitted,

Christian Dawson Executive Director, i2Coalition 718 7th St., NW Washington, DC 20001 [email protected]

November 21, 2020