The U.S. Trade Representative recently released its annual Notorious Market List, which calls out markets where the infringing of intellectual property is most problematic and where markets themselves enable “substantial copyright piracy and trademark counterfeiting.” While pinpointing China, Russia, Argentina and India as hotbeds of IP infringement, Uncle Sam also listed nations like Mexico and Thailand where “IPR holders face a difficult environment due to the large number of markets offering counterfeit and pirated goods and services, and a relative lack of enforcement.”

Although the trade rep’s work up to now primarily has focused on online and offline markets where infringing goods proliferate, the latest USTR list for the first time also identifies domain-name registrars that American officials deem of concern. The USTR hopes to hold internet registrars accountable for  infringement by its users and says these services are “playing a role in supporting counterfeiting and piracy online.” As a domestic legal tactic to crackdown on IP infringement, such a move hasn’t gone over well–and such a move may not play well across the Atlantic or Pacific, either.

Attention grabbing report

The USTR report, while it gets lots of attention, especially from supportive American interest groups in the movie and recording industry, isn’t  legally binding, though it makes a convincing case about many real issues with Internet infringement.

But as the EFF points out, the agreement that registrars sign with ICANN, the net’s online, international regulatory agency, does not require them automatically to suspend domains at the first accusation of infringing activity. Many registrars are not even legal owners of a given domain. Take the case of Canada’s Tucows, which the USTR highlights as a registrar failing to act when notified of infringing activity. It has replied to the U.S. gripe by noting: “the domain is not hosted on our network, nor do we provide bandwidth, web hosting, or email services… we cannot just delete domains that have objectionable words in them.”

To get a further sense of the challenges of involving domain considerations into global anti-piracy effforts, consider that the multiyear U.S. domestic experience with getting ISPs involved in IP policing hasn’t exactly stanched wrongdoing in this area. The Copyright Alert System’s initial status report says the system in its first 10 months sent out more than 1 million alerts to ISP customers, warning of potential infringing activity; system operators said just 265 alerts were challenged and they expect to double their efforts. Few of the warnings progressed to the system’s stages where potential actions might be pursued. The preponderance were “educational,” and the hope is that users will respond and address issues so they aren’t found to be infringing.

Why ISPs, registrars balk

What’s another larger issue that may make ISPs and registrars balk at cutting off service, turning over alleged infringers’ identities or assisting in their prosecution? They say that users may have been misidentified or victimized by fraud.

Notable examples of mis-identification and fraud have occurred when users’ friends or family members tap their computers to illegally download copyrighted materials. Another common event is when a third party borrows, buys, or steals a defendant’s modem or computer, then uses it for illegal file sharing. It also can be problematic when a network has been compromised and is accessible to third parties, thereby pointing to individuals who may appear to be infringing but may not be direct actors themselves.

ISP’s and domain registrars also hesitate to divulge customers’ identities, particularly in an age of increasing privacy awareness and societal demand. While the USTR’s report identifies registrars as central to fighting piracy and protecting the ingenuity of artists-creators, privacy concerns for users can become paramount, particularly when media entities seek individual or demand mass calls for alleged infringer identities.