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In ICANN We Trust: Assuring Accountable Internet Governance PDF Print E-mail

Today, the International Center for Law & Economics (ICLE) released its Innovation Policy Research Program White Paper entitled: IN ICANN WE TRUST: ASSURING ACCOUNTABLE INTERNET GOVERNANCE. This article is an abbreviated excerpt of a forthcoming scholarly article that explores various aspects of the proposed transition of the IANA Internet governance functions from U.S. oversight to full multistakeholder control in conjunction with the Internet Corporation for Assigned Names and Number (“ICANN”).

Since 1998, ICANN has been the organization tasked with overseeing the Domain Name System (DNS). Though it possesses contractual control over its registries and registrars (the entities responsible for managing and registering top level domains and domain names), illegal conduct is rarely ever deterred by ICANN. For instance, the organization has refused to effectively deter content piracy on the Internet, and pirated content currently constitutes nearly one-quarter of Internet traffic. ICANN has consistently claimed that its role in Internet governance is merely a technical one, and that it is not the “regulator of Internet content.” However, the impending transfer of IANA stewardship entails imbuing ICANN with an overtly government-like function that demands more than mere technical acuity. Whatever ICANN’s historical role has been, following the transition ICANN will have a dual role — one that includes the obligation to properly “steward” the DNS, as well as to technically administer it.

The full forthcoming paper develops a recommendation that the post-transition ICANN be structurally designed to account for the public interest concerns of the multistakeholder community. Building on existing scholarship, as well as recommendations that have emerged from the Cross-Community Working Group on Accountability, we recommend implementation of strong due process controls within the organization in order to provide the checks and balances that would restrain the organization suitably while also allowing it to answer to the policy concerns of the multistakeholder community. Further, as a private organization without government oversight, the recognition and enforcement of contractual provisions with registries and registrars is an essential component of assuring the accountability of the organization and the achievement of multistakeholder policy goals.

Historically there have been criticisms of ICANN — both in terms of the direct accountability of the board to the stakeholder community as well as in terms of its refusal to enforce its own contracts.  This paper develops a theory of implementation for the organization that attempts to resolve these problems and, ideally, to give the NTIA and Congress a frame for understanding the broader needs of accountability in the new post-transition ICANN.

ICLE files an Amicus Brief In Fox v. Aereo Killer PDF Print E-mail

On Wednesday, the International Center for Law & Economics, along with the Competitive Enterprise Institute, filed an amicus brief in the Ninth Circuit Court of Appeals supporting the appellants in Fox Television Stations, Inc. v. Aereo Killer LLC. The case arose out of Aereo Killer’s Internet video platform, from which it would retransmit content without either the consent of the broadcast stations or permission from the holders of copyrights in the content it distributed.

Aero Killer essentially seeks to engage in regulatory arbitrage by, on the one hand, claiming that it qualifies for compulsory licenses as a “cable system” under Section 111 of the Copyright Act, while on the other hand seeking to avoid applying for “retransmission consent” under the Cable Act.

In our brief we explore the issue of the interplay between “retransmission consent” and “compulsory licenses,” and on Aereo Killer’s unjust and illegal attempt to create a carve out for itself in violation of Congressional intent:

Defendants seek a compulsory license under Section 111 of the Copyright Act, which would allow them to sell a service that retransmits copyrighted television shows without permission from the program owners—while paying only statutorily determined royalties that do not come close to market rate for Plaintiffs’ programming. At the same time, however, Defendants have configured their service so that they do not need to obtain consent from the broadcasters whose signals they wish to retransmit, because Internet-based retransmission services do not meet the Communications Act’s definition of an MVPD. On the latter point Defendants are correct: Internet-based retransmission services are not MVPDs. However, treating their service as a “cable system” under the Copyright Act, but not under the Communications Act, is contrary to the statutory framework Congress created.

In practice, and by design, therefore, a service that retransmits television programming is subject to both provisions, or neither of them, depending on the technical details of the service. Congress affirmed its intent that these provisions go hand-in-hand in 1994

Congress crafted the statutory regime as it did precisely to prevent the unjust enrichment of television resellers at the expense of broadcasters and copyright owners. Defendants do not operate a cable system and are thus ineligible for the compulsory copyright license. If they wish to retransmit plaintiffs’ television programming, they are free to bargain for a copyright license, as so many other Internet-based video distributors have done.

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