The Seamy Side of the Seamy Side: Potential Danger of Cyberpiracy in the Proposed “.xxx” Top Level Domain

• Jurisdiction: United States,Federal
• Citation: Vol. 7 No. 2005
• Publication year: 2005

Jennifer D. Phillips⁰

Recently, the Internet Corporation for Assigned Names and Numbers ("ICANN") has considered a proposal which would create a top level domain ("TLD") exclusively for sexually oriented adult content, called ".xxx." The proposal for the TLD outlines registration steps to protect trademark holders, individuals, and mainstream businesses from cyberpiracy, yet all but ignores the possibility of cyberpiracy within the adult entertainment community. Without registration safe guards, adult entertainment providers can only protect themselves against cyberpiracy by utilizing ICANN arbitration and federal cyberpiracy law, which tend to not apply well in the adult entertainment context. This comment examines how the .xxx proposal does not protect adult entertainment websites and explains why litigation and arbitration do not adequately protect adult entertainment websites against cyberpiracy within the proposed .xxx.

I. Introduction

In a rare "hell freezes over" scenario, conservative Christian groups might be the saving grace of adult entertainment. Recently, and largely because of the intervention of the Bush administration, the Internet Corporation for Assigned Names and Numbers ("ICANN") has put the proposed .xxx top level domain ("TLD") on hold. For perhaps the first time ever, Christian groups and business-savvy adult entertainers are in agreement on something pertaining to pornography: the .xxx domain is a bad idea. Obviously, the reasoning behind their respective opinions differs greatly. Conservative Christian groups have been extremely vocal about their concerns, claiming that the domain will legitimize online pornography and fail to protect children.¹ Although less openly vocal about their concerns,² adult entertainment companies are concerned with possible negative effects the TLD could have on their businesses, particularly when they have spent time and money developing a customer base on a different TLD.³ Perhaps what is most interesting is that the groups represent the most extreme positions of their respective view points. Many moderate to conservative Christians believe that the .xxx TLD is desirable, as it will be easier to filter, thus preventing children from accessing sexually explicit sites. On the other side of the fence, many adult entertainment companies anticipate the marketing benefits the new .xxx domain will provide.⁴

A common reservation voiced by all groups, however, is the potential abuse of the TLD by cyber- and typosquatters. A problem that, to this point, legislation has been unable to sufficiently address, cyber- and typosquatting crime emerged in the 1990's with the rise of the Internet. Cybersquatting developed first, and has received a good deal of mainstream attention.⁵ Simply put, cybersquatting involves buying a domain name that is of interest to an established person, business, or organization.⁶ The cybersquatter then either tries to sell the domain name to the interested party at a greatly inflated price, or keeps the name and directs all traffic to another, often unrelated website.⁷ Commonly, these crimes go together, with the hijacked name directing traffic to a website containing antisocial content in an attempt to coerce the owner into paying a ransom for the domain name.⁸ Typosquatting is a related, although separate, issue. Generally, it involves "misspelling or variations of legitimate domain names in order to trick individuals into viewing unrelated advertisements or web sites."⁹ While not all typosquatting is done with criminal intent,¹⁰ it often directs Internet users to pornographic websites. Because minors use the Internet,¹¹ some legislation has been passed to prevent typosquatting.¹² For the purposes of this article, "cyberpiracy" will refer to both cybersquatting (problematic when a trademark is infringed), and typosquatting (problematic when a trademark is infringed or diluted, but rising to a level of a crime when minors are endangered.)¹³ In addition to cyberpiracy, there are also concerns involving domain disputes, where two or more legitimate businesses or people have interest in the same domain name.

Because cyberpiracy is often associated with pornography and adult content, the proposed .xxx TLD has led to great concerns among Internet users and domain name owners. A survey of any website with a forum dedicated to the proposed .xxx TLD will find speculations on worst-case cybersquatting scenarios, where every decent citizen who does not want his or her name or company associated with pornography must preemptively buy an .xxx domain name. From a legal perspective, most of these concerns are unfounded. The proposed registration process in the .xxx TLD application¹⁴ outlines a set of steps designed to prevent cybersquatting and typosquatting.¹⁵ If implemented as proposed, the steps should provide adequate protection for those who are not a part of the adult entertainment industry. Furthermore, federal law will provide adequate relief for those mainstream businesses and individuals who are victimized by any opportunistic cyberpirate who manages to slip by the strict registration procedure.

Ironically, the .xxx cyberpiracy will not threaten unwitting web-surfers with unexpected and offensive online pornography, as has traditionally been the case, nor will it hold hostage desirable domain names sought by mainstream businesses or individuals.¹⁶ Rather, the potential victims of .xxx cyberpiracy are adult entertainment companies, including the same adult entertainment companies whose aggressive marketing tactics wreaked havoc in the .com, .net, and .org domains. The domain registration screening protections proposed by ICM are explicitly denied to adult entertainment websites. The procedures are designed to protect only legitimate businesses from exploitation in the .xxx TLD.¹⁷ Under the proposal, adult entertainment companies are ostensibly protected from mainstream businesses, though the threat posed to adult entertainment by mainstream businesses is minimal.¹⁸

Unshielded by ICM, adult entertainment companies will be vulnerable to all varieties of cyberpiracy and subject to multiple domain name disputes. Compounding this problem is the fact that laws and proceedings designed to deal with cyberpiracy and domain disputes are entrenched in trademark law. What have been workable legal solutions in other contexts will not function correctly in the .xxx context. Many of the names registered will be generic terms that cannot be trademarked.¹⁹ Another group potentially affected includes small sites whose names are not well known enough to warrant trademark registration.²⁰ Up until now, they may have been confident in the fact that they owned the right to their domain name. However, the .xxx domain creates a situation where a competitor can buy an identical domain name, potentially deflecting customers from the original site. Because neither group owns a registered trademark, trademark law will prove inadequate to protect these groups.

II. Internet Terminology for the Technologically Disinclined

When trying to place domain disputes in context, a basic knowledge of the Internet and Internet jargon is invaluable. The traditional definition of the "Internet" is a "worldwide network of interconnected computers, all of which use a common protocol . . . to communicate with each other."²¹ The "World Wide Web" is made up of Web pages, which we access on the Internet and which are written in a computer code called Hypertext Mark Up Language ("HTML").²² Every webpage has an address, which is a number assigned by ICANN.²³

Because most people cannot remember long strings of numbers, "domain names" are used to identify websites. Most domain names consist of three parts which identify the website.²⁴ The "www" portion indicates the page is available on the World Wide Web. The domain name is the name by which the site is commonly identified (i.e., the "amazon" in amazon.com.) The suffix of the domain name is the TLD. Familiar examples of these include .com, .net., .gov, and .org.²⁵

ICANN is a non-profit corporation and the only organization authorized to assign domain names, though they typically delegate this authority to companies who are capable of handling an entire TLD. This article is concerned with the creation of a new .xxx TLD, which would be dedicated to the adult entertainment industry. The company that has proposed .xxx is ICM registry ("ICM"), a corporation formed expressly for that purpose. Although negotiations between ICM and ICANN are well past the preliminary stages, the domain is currently on hold.²⁶

III.Laws Relating to Cyberpiracy and Domain Name Dispute

Although the federal government recognized cyberpiracy as a problem as early as the mid 1990s, it has yet to come up with a satisfactory method of resolving domain name disputes. Most legislation in this area has centered around cybersquatting, with some of it touching on areas of typosquatting. Domain name disputes not involving cyberpiracy are common, but are not specifically addressed by any legislation.²⁷

Parties involved in a cyberpiracy case or domain dispute can choose to litigate under federal law, or pursue alternative dispute resolution through ICANN's Uniform Dispute Resolution Policy ("UDRP").²⁸ According to numerous legal commentators, the general problems with both the federal legislation and the UDRP involve an inability to reach all claims and charges that seem deserving of protection, and a lack of a clear, consistent standard by which claims and charges may be adjudicated and an inadequate punishment of offenders.²⁹

A. The Federal Trademark Dilution Act and the Lanham Act

Perhaps more than any other technological development, the Internet poses unique and unanticipated legal problems. Having realized the importance of the Internet before much of corporate America, early cybersquatters bought numerous valuable domain names and essentially held them hostage. At the time...