A question that I have (and it is a question, not a statement), is do people think it is possible to craft a policy that applies to those who are deliberately ignoring or even supporting illicit activities, and yet clearly not apply to those who with the best of intents, provide services to those with illicit intents? Laws can be vaguely worded with the knowledge that courts are there to make decisions. An ICANN policy, in the absence of an ongoing de facto "court" system, surely needs to have clear, well defined ways of separating good from bad. Alan At 07/09/2009 01:49 PM, Danny Younger wrote:

I read a recent article entitled "Web hosters ordered to pay $32M for contributing to trademark infringement" (1) that notes a jury award against two hosting companies that knowingly allowed several Web sites they hosted to sell products that infringed Louis Vuitton's copyrights and trademarks. This decision is cited as the first successful application on the Internet of the theory of contributory liability for trademark infringement.

Under this theory, companies that know, or should know, that they are enabling illegal activities have an obligation to remedy the situation.

This brings me to the topic of registrars and proxy services.

It's no secret that some registrars have set up proxy services knowing full well that miscreants often will hide behind such services. At issue then is the nature of a registrar's obligation (and perhaps ICANN's obligation) under law to properly remedy the situation. What are the parameters of that obligation?

We are now starting to see this issue play out in other court environments;in the recent lawsuit between TransAmerica and Moniker the following claim has been made:

"Plaintiff also alleges that Moniker Online knows or is willfully blind to the fact that its customers are fictitious entities and anonymous individuals engaged in trademark and service mark counterfeiting but, in reckless disregard of that fact, continues to provide registration services to them, to conceal their identities, and to act as their authorized licensee, and/or otherwise in concert with them, in a scheme to "monetize" their counterfeit domain names and profit jointly from the deceptive advertising that appears at these counterfeit websites. The result is a business model that facilitates massive trademark counterfeiting, endangers consumers by concealing the origin and source of financial services advertised and sold on the Internet, and produces a plethora of counterfeit websites.." (2)

Without commenting on the specifics of this particular case (IANAL), it does seem to me that as a community we have an obligation to lay out a policy to better govern the proxy registration process.

I look forward to your views on the topic.

regards, Danny