Michael Scott points us to an article at CircleID that appears to be little more than a disguised press release for a company pitching “brand protection service,” suggesting that registrars and ISPs need to crack down on illegal online pharmacies and drug trafficking or face legal consequences. While the analysis is correct that trademark violations are a loophole not protected by CDA section 230 safe harbors, that doesn’t necessarily mean that a registrar or ISP is automatically liable for hosting such a site. The whole point of section 230 is to make sure that liability is properly placed on the user, rather than the service/tool provider. That should stand even without section 230 protections. You can’t just blame a third party because they’re easier to find. The article seems to imply that if anyone complains about a trademark in a domain name, registrars and ISPs should automatically shut down that site — but that would create serious problems. The real issue here is a serious loophole in safe harbor protections when it comes to trademarks. The answer shouldn’t be a moral panic for registrars and ISPs, but to close the loophole and harmonize the various safe harbor provisions.
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