Key Internet Players Call For Clarification of ‘Notorious Piracy Market’ Term

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Earlier this month, several copyright holder groups sent their annual “notorious markets” submissions to the U.S. Trade Representative (USTR).

The U.S. Government uses this input for its annual review of notorious piracy markets, an overview of threats to various copyright industries.

The recommendations, including those from the RIAA, MPA, and ESA, traditionally include well-known piracy sites such as The Pirate Bay, but increasingly third-party technology providers are also being added to the mix.

For example, domain registrars and hosting services are regularly listed, and the same is true for advertising companies. Cloudflare has been frequently mentioned as well, although it’s not officially listed since the overview focuses on foreign entities.

The copyright holder groups who send these recommendations hope that the U.S. will include these companies in its final overview. That would put pressure on the sites and services as well at the countries from where they operate.

However, not everyone is pleased with this development. According to the Internet Infrastructure Coalition (I2Coalition), which counts Amazon, Cloudflare, Google, OVH, Steadfast and Tucows among its members, third-party intermediaries don’t belong in this list.

“Notorious markets should not be confused with neutral intermediaries such as Internet Infrastructure providers,” the I2Coalition writes in a letter to the USTR.

The coalition notes that some submissions, including those from the International Intellectual Property Alliance, have gone too far by suggesting copyright protection measures that would harm Internet infrastructure and therefore the Internet as a whole.

The group notes that Internet infrastructure providers, such as DNS providers, route users of the web to the right online locations. These services simply refer requests and don’t control the information at the locations where people are directed.

“The nature of these kinds of businesses is that they have limited access to content information. There are intermediaries between various segments of the Internet as a whole. They are not markets. Yet, these kinds of companies may be erroneously listed in the USTR notorious markets report,” the I2Coalition writes.

The Internet companies add that recent updates to the law have highlighted new enforcement options. However, it is not clear what must be enforced. This can become problematic when various stakeholders have different views on what the term ‘notorious market’ means.

“It is in this lack of clarity where many who submit to the notorious markets either by mistake or intentionally mischaracterize the concept of notorious markets for the purposes of identifying intellectual property infringement.”

The coalition calls on the USTR to deliver clarity as some of the current submissions vilify specific technologies, it says. Instead, the process should be limited to the ‘notorious’ sites and marketplaces themselves, not third-party intermediaries.

“We believe that the spirit and letter of the relevant IP laws are better upheld by going after true notorious markets, not throwing the baby out with the bathwater by going after Internet infrastructure providers,” the I2Coalition stresses.

The letter doesn’t mention specific companies or services the coalition believes were mistakenly called out. However, the coalition makes it clear that an effort to clear up what a ‘notorious market’ is should include a variety of stakeholders, not only those who represent the copyright industry.

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A copy of the letter the Internet Infrastructure Coalition sent to the US Trade Representative is available here (pdf).

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