ICANN At Large: power grab, fixing a problem, or irrelevant
Jim Kingdon
the ICANN board changed the At Large system - see
http://www.icann.org/minutes/prelim-report-10mar00.htm
Also see the "real time scribe" notes at
http://cyber.law.harvard.edu/icann/cairo/archive/scribe-icann-031000.html#alm
My quick summary:
* they are switching from indirect elections to direct elections,
which many critics have asked for
* they are extending the terms of various existing directors. Some
have interpreted this as a power grab. I guess to me it is less of
one than the indirect election scheme was, I dunno.
Richard J. Sexton
It's the zeon of ICANN. Everytime you think you get something you
want it's followed by something awful you hadn't thought could
happen.
The indirect elections would have replaed the board members and they
were cancelled so now thay have to come up with direct elections
whcich will take longer so the orignial board memebrs can't leave. The
baord issues a "poeplewant us to stay" press release, which was
their spin on this.
There's somehting evry scary about 12,000 people (so far)
getting to decide stuff when you consider probaly only 6 of
them understand RFC1591.
Surely the whole issue would really be best worked out by the
set of nameserver owers and operators. In what sense does
anybody really have a right to an opinion as to how we
run our networks?
Can you imagin if the usenet news namepace was under
ICANN's contro.. SAAAAAAYYYYYYYYYYYYYY now ther's JUST
THE THING THEY BOTH NEED.
--
Richard Sexton | ric...@tangled.web | http://dns.vrx.net/tech/rootzone
http://killifish.vrx.net http://www.mbz.org http://www.dnso.com
Bannockburn, Ontario, Canada, 70 & 72 280SE, 83 300SD +1 (613) 473-1719
Richard J. Sexton
Business Administration roudtable delving into icann and
famous marks today based patry on my screed below
http://www.open-rsc.org/essays/sexton/sunrise/
Simply put, it's unfair and gives trademark owners
greater rights that they have in the real world under the
real law. Trademark rights everywhere are remedial, not
pre-emptive.
The internet community has always adhered to
RFC1591 as a common practice. This document says
"first come first served" and says in no uncertain terms
that while this may not be entirely fair, it's more fair than
any alternative.
This new proposal would give mark holders first right of
refusal for second level domain names ("Sunrise
Provision") or those names which corresponded to
famous marks ("Sunrise Lite").
Because there can be many trademarks for the same
word, their plan is to use first-come-first served among
mark owners.
So, if you don't own a mark on that word you lose out.
But if you can go and get a trademark then now you can
get one first come first served. This isn't only unfair, it's
just silly.
More so, this gives mark owners a certain control over
the second level to a domain name. I'm still free to
infringe on their marks in the third level of a domain
name. That is if I put up a website called
http://coke.inter.net which I can do for under $100, and
sold a brown carbonated beverage all of these silly rules
wouldn't have stopped me and I'll be dragged into court
and rightfully so. I submit that it is in the small business
owners best interests to watch big business fight it out in
court; a series of court cases finding for mark owners
(remember, no cybersquatter has ever won in court) will
to more to protect the marks of small business owners
than an exemption made for famous mark owners.
So, the sunrise provision makes it more difficult for all
internet users (except the handful that qualify for the
sunrise provision for a given name) more difficult to use,
and doesn't really do much when it comes to protecting
mark owners.
In this sense the small business owner, who may not
have a mark - yet - is aligned with the average internet
user in that they cannot compete fairly for a domain
name.
This is not sufficient justification to change RFC1591 -
the way that domains are registered on the Internet.
Greg Skinner
Richard J. Sexton <ric...@ns1.vrx.net> wrote:
>Surely the whole issue would really be best worked out by the
>set of nameserver owers and operators. In what sense does
>anybody really have a right to an opinion as to how we
>run our networks?
I'd certainly like to see more nameserver owners and operators
involved in the process, but like I told Ken Freed on the ifwp list,
there are people out there who for whatever reasons don't seem to
want to be involved.
--gregbo
gds at best.com
Matt McLeod
that Richard J. Sexton did write:
>There's somehting evry scary about 12,000 people (so far)
>getting to decide stuff when you consider probaly only 6 of
>them understand RFC1591.
While I have some doubts about the at-large scheme (in particular
the complete lack of any criteria for membership -- and I'm not
sure I can think of anything which is both simple and reasonable,
except maybe ownership of a domain or operation of name servers?),
6 out of 12,000 is probably underestimating things a bit.
I joined because I've got an interest in the area and couldn't
see any reason *not* to, and I can bloody well read and understand
RFC1591 -- indeed, just re-read it in case my comprehension skills
had gone to pot. It's hardly a complicated document.
--
"Perhaps he thought I was just
servicing the master?"
-- Damien, Prince of Darkness, Eater of Souls
Matt McLeod
that Richard J. Sexton did write:
> RFC1591 as a common practice. This document says
> "first come first served" and says in no uncertain terms
> that while this may not be entirely fair, it's more fair than
> any alternative.
What was that about people understanding RFC1591? :-)
It doesn't say the latter -- it makes no comment on the fairness
or otherwise of first-come-first-served. Unless we're reading
different versions...
--
Error reduces
Your expensive computer
To a simple stone
Jim Kingdon
Well, for what it is worth, the discussion sort of seems to be
gravitating towards a sunrise provision (a) including famous marks
only, and (b) having this only be for the initial registrations in a
new top level domain, not as an ongoing thing. The new top level
domains would be 6-10 in number, followed by evaluation which in
ICANN-speak probably means another year or several before they create
more.
None of this is decided yet, though, see:
http://www.icann.org/dnso/wgb-report-21mar00.htm
http://www.icann.org/dnso/wgc-report-21mar00.htm
and the overall page including public comment information:
http://www.icann.org/dnso/new-gtlds-01apr00.htm
Strange
> owners best interests to watch big business fight it out in
> court; a series of court cases finding for mark owners
> (remember, no cybersquatter has ever won in court) will
...
But one has recently won in ICANN's dispute resolution process.
Personally, I am in favor of letting the (now international) trademark
system find its own level with this stuff and getting this whole other
pseudo-legal administrative process out of the mix.
-M
--
Michael Brian Scher (MS683/MS3213)| Anthropologist, Attorney, Policy Analyst
Mainlining Internet Connectivity for Fun and Profit
str...@netural.com li...@foad.org str...@cultural.com str...@ispfh.org
Give me a compiler and a box to run it, and I can move the mail.
Jim Kingdon
> system find its own level with this stuff and getting this whole other
> pseudo-legal administrative process out of the mix.
I might agree with this although I will note that trying to hand
things over to the trademark people has led to some strange things
like them wanting a stronger assurance that a domain name has contact
information (that is, sufficient to serve process of a lawsuit) which
would cause its own set of problems (who is supposed to verify this
information and all that kind of thing).
Richard J. Sexton
>see any reason *not* to,
What would have happened if nobody joined?
Richard J. Sexton
If you support this dcoument, send mail to jo...@johnberryhill.com telling
him so.
Return-Path: <jo...@johnberryhill.com>
Delivered-To: ric...@vrx.net
From: "John Berryhill Ph.D. J.D." <jo...@johnberryhill.com>
To: <mpa...@infonetworks.com>, <wg...@dnso.org>
References: <001a01bfa637$7644dda0$45fd...@infonetworks.com>
Subject: Re: [wg-b] Revised IPC Proposal
Date: Fri, 14 Apr 2000 13:54:50 -0400
X-MSMail-Priority: Normal
X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2615.200
The following reflects the comments made by Richard Sexton and by me during
the SBA teleconference yesterday. I will polish it a bit and submit it as
an attachment to Mr. Palage. If anyone wants to sign on, let me know, and I
will send a final version around later today.
---------draft comments-----------------
Mr. Menge,
Thank you for providing the opportunity for those concerned to present their
views on the impact of proposed new gTLD provisions on small businesses, and
for soliciting input into the upcoming SBA Office of Advocacy report. The
following summarizes the two points that you had requested I send to you.
Unfortunately, my legal training causes my "summaries" to sometimes be
longer than the points themselves. As far as getting consensus on a
compromise proposal, you can scroll to the Conclusion.
Point (1) - The Proposals Have No Basis In Technology Or Law
My comments essentially boil down to the fundamental maxim of Law, "Where
there is a right, there is a remedy." The ICANN Intellectual Property
Constituency's various exclusion or "sunrise" proposals are not in
accordance with the remedial nature of the Law. These proposals are for
prospective, pre-emptive restraints of the kind that we do not permit our
own government to exert in the enforcement of criminal law relating to the
use of words. Why should private individuals have greater power in the
context of potential civil liability?
These proposals have perverted Law to "Where there is a right, there is a
way to prevent people from violating it." That has never been the way Law
functions in our society, and it has certainly never been the way the
Internet functions. If it's not "technical administration", and if it is
not "law", then I don't know what it is. Technical concerns say (a) domain
name allocations are to follow RFC1591 - firs come, first served and (b)
there is a need for a larger name space. The Law says that violations of
private rights can be remedied after the fact. The IPC/WG-B proposals do
not arise from valid technical or legal principles.
EricMengeIsaPedophile.com is libelous, and has legal consequences as a
string of text.
HaveSexWithMeForMoney.com is a criminal solicitation.
TheHolocaustIsaJewishLie.com is likewise a criminal utterance, but in
Germany, not the U.S.
MuhammadTheProphetAtePork.com is blasphemous and likely a capital offense in
several countries.
Yet, despite these and other categories of legally significant utterances,
some even criminal in nature, nobody is proposing a prior restraint on them.
Trademark infringement is only a subset of a much larger category of
legally-proscribable uses of alphanumeric characters. Why, among all forms
of legally significant text strings, are trademarks singled out for a
heretofore unknown pre-emptive right? Because ICANN, a technical body, has
an "Intellectual Property Constituency" with non-technical concerns. There
is no "Libel Constituency", "Criminal Solicitation Constituency", or
"Religious Constituency". Why not? Because these issues do not relate to
technical administration, which is the mandated mission of ICANN. These are
questions you can pass along to the GAO personnel studying the structural
and delegated authority aspects of ICANN.
Despite the talk about the "importance of stability to the development of
e-commerce", ICANN was not chartered to be about commerce or whatever else
for which the internet might be used. They are supposed to be running
narrow technical aspects of a computer network. "Do the bits get from one
end of a wire to the other?" is not a legal question. Re-engineering the
remedial principle of law as a proscriptive technical policy makes no sense.
Trademark infringement happens in telephone book listings. All kinds of
shady folks get fradulent telephone book listings, or use "Yellow Page" ads
which infringe trademarks or convey a false or unfair commercial impression.
These situations are dealt with all of the time by trademark lawyers. They
are not dealt with by providing a pre-emptive famous name list or a sunrise
period for telephone books. In fact, the makers of the telephone books are
not held liable for these kinds of things. In the context of 800 number
assignments, the FCC has decided that dealing with trademark issues is a job
for trademark lawyers, and not for technology policy makers at the FCC. Why
should ICANN be any different?
The DNS is a telephone book. It maps names to numbers in precisely the same
way. Why is it that we manage to publish telephone books without
difficulty? Why would we argue about adding a new telephone exchange in an
area code, become concerned that the possibility of a greater number of
telephone listings would provide more opportunities for trademark
infringement, and suggest that it would subject the telephone book
publishers to legal liability? Because they are ridiculous assertions. But
somehow they are taken seriously in the context of the DNS.
Even when someone has successfully asserted a trademark right involving a
telephone listing, the books themselves are not published again until a year
later. The DNS can be altered within a matter of hours to reflect a
succesful, and remedial, assertion of trademark rights. That serves the
interests of IP owners even more efficiently than an analogous system -phone
books - with which we have lived comfortably for years.
To make the picture even clearer. I can infringe trademarks with my
business card, letterhead stationery or outdoor signs. But when I walk into
the print shop, there is no IP daemon sitting on the shoulder of the printer
with the job of determining what words I may or may not have imprinted on my
business materials. I bear the legal consequences of my choice, but I am as
free as anyone else to have my own business materials without having to wait
outside during a "sunrise period" in which the "first among equals"
negotiated what is to be left over for me to have.
And so we develop a byzantine system of chartered and non-chartered TLDs,
and a system of restrictions and lists and sunrise periods on top of that.
The next day after I, a lowly individual, am allowed to register domain
names with the great unwashed masses, I obtain generic.generic (in the new
"generic" TLD). And the day after that I set up my server to resolve
kodak.ibm.cocacola.generic.generic/kiddieporn.html . Then what did any of
this nonsense buy for anyone other than delay and large expense account
bills?
Bold prediction #1 - there will continue to be rampant intellectual property
violations on the Internet.
Bold prediction #2 - there will be no way to prevent it, but there will
remain remedies at law.
Point (2) - Artificial Constriction of the Name Space by the IPC is Hurting
Small Business
There already are mechanisms to enforce trademark rights in cyberspace - the
UDRP and the ACPA among them. Both of these mechanisms are available to
anyone who can afford a lawyer, which, with the UDRP includes many but not
all small businesses. Genuine cybersquatting hurts small businesses in
smaller gross monetary terms, but perhaps in larger proportionate terms for
the affected businesses, than it does larger businesses.
However, when BigBusinessCo is faced with a squatter who has occupied
BigBusinessCo.com, .net and .org, then BigBusinessCo can readily afford to
get rid of the squatter. Joe's Fish Market is faced with a much larger
problem, because they cannot so readily afford to do the same thing.
The presence of a large, and I mean very large, number of TLDs does two
things to help Joe's Fish Market - it increases the cost of pre-emptive
cybersquatting and it decreases the value of any one domain name occupied
but not used.
If someone is sitting on the domain "cocacola.irrelevant", not producing any
content at a corresponding website, and demanding thousands of dollars from
Coca-Cola, then why would anyone, including Coca-Cola care? The commercial
injury to Coca-Cola of a tiny vacant island in a sea of thousands of TLDs is
approximately zero. In fact, it is actually zero. Now, yes, there is such
a thing as trademark infringement, but if the only thing one sees at a web
site is "This Domain for Sale!" or "We Registered At Lousynames.com!" then
what is the basis for any consumer to be confused about anything? They were
looking for a brown fuzzy beverage in a red can. "Hmm.... must not be at
this domain name...."
Conclusion
You had floated the compromise proposal of a mixture of "chartered" versus
"non-chartered" TLDs, and how many of each there should be. All I could
think of during that portion of the discussion is to consider whether it
would be a good idea to have a large quantity of even numbers or odd
numbers. In fact, there is no good reason not to have an infinite supply of
both.
The mechanisms for restricting registrations according to various
pre-emptive systems are flawed technically as they do not accord with
RFC1591, and they are flawed legally as they do not accord with the remedial
character of Law as we in the West have come to know it over a learning
curve of hundreds of years. The IPC does not have the technical background
to run the Internet, and WG-B does not have the legal sophistication to
re-write basic trademark law. This is not how to run a computer network.
John Berryhill, Ph.D. esq
Philadelphia, Pennsylvania
Strange
> I might agree with this although I will note that trying to hand
> things over to the trademark people has led to some strange things
> like them wanting a stronger assurance that a domain name has contact
> information (that is, sufficient to serve process of a lawsuit) which
> would cause its own set of problems (who is supposed to verify this
> information and all that kind of thing).
Well, where I come from, if you help someone anonymously commit a civil
harm, you can become liable in their stead. So I should think the
registrars would take this on in their own little ways, same as other
companies that deal in publishing others' information.
Eventually, they'll probably lobby for protection, and make the pendulum
swing the other way.
Matt McLeod
that Richard J. Sexton did write:
>>see any reason *not* to,
>
>What would have happened if nobody joined?
Well, putting aside the extreme unlikeliness of that,
I'm guessing they'd use it as 'proof' that there was no
interest in any sort of wider involvement in ICANN.
It's certainly what I'd do if I were a would-be
Evil Overlord.
--
"Awooga! Awooga! Someone put my clothes back on!"
Kai Henningsen
> > Personally, I am in favor of letting the (now international) trademark
> > system find its own level with this stuff and getting this whole other
> > pseudo-legal administrative process out of the mix.
>
> I might agree with this although I will note that trying to hand
> things over to the trademark people has led to some strange things
> like them wanting a stronger assurance that a domain name has contact
> information (that is, sufficient to serve process of a lawsuit) which
> would cause its own set of problems (who is supposed to verify this
> information and all that kind of thing).
I actually don't see anything wrong with this particular requirement.
Indeed, it seems to me that similar complaints against old Internic have a
long tradition, even from non-trademark people.
Kai
--
http://www.westfalen.de/private/khms/
"... by God I *KNOW* what this network is for, and you can't have it."
- Russ Allbery (r...@stanford.edu)