>X-Mailer: Novell GroupWise 5.2
>Date: Wed, 10 Feb 1999 11:15:24 -0500
>From: "Harold Feld" <[EMAIL PROTECTED]>
>To: [EMAIL PROTECTED]
>Subject: DNS v. TM
>Sender: [EMAIL PROTECTED]
>Reply-To: [EMAIL PROTECTED]
>X-MIME-Autoconverted: from quoted-printable to 8bit by condor.lvrmr.mhsc.com
>id IAA14048
>
>Mr. Schwimmer Writes:
>
>>Write a post asking for working together to harmonize and they say "drop
>dead."
>
>If you read this as the intent of my post, you seriously misunderstood. As
>you should know from reading what I have written over the last several
>months, I have never adopted such an attitude.
>
>My position has always been simple: where should the primary burden of
>protecting trademark interests lie? Answer: The primary burden for policing
>and enforcement must lie with TM holders, as it always has. This is the way
>it has always been in the world.
>
>Another central point, which is crucial to understanding my next statement,
>is that market pressure and technological limitations, rather than
>protection of existing stakeholder interests, should drive the development
>of technology. The DNS evolved in a particular way for technical reasons.
>In the absence of TM concern for policing, there is no reason to restrict
>the advent of new TLDs. similarly, in the absence of concern over policing,
>there is no reason to impose new restrictions on registries. If other
>reasons emerge, either market pressure (there is no market for new TLDs) or
>technical reasons (there is a ceiling to the number of TLDs that can be
>added), then they impose natural limits.
>
>Mr. Schwimmer continues:
>
>>If I said victims of reverse DN hijacking that DN owners should accommodate
>themselves to >the way things are, Mr. Feld would respond how?
>
>Reverse hijacking is an artifact of NSI's attempt to protect itself from
>lawsuits. It is neither a technical limitation nor a market limitation. If
>new, competing TLDs could be created, with different policies, NSI's policy
>could be viewed as a market choice by NSI, and I would defend their right to
>make that choice (and encourage folks to migrate to different registries).
>As it stands, however, consumers have no choice.
>
>The NSI policy that permits reverse hijacking, like the proposed WIPO
>policies that would encourage even more rampant reverse hijacking problems,
>are barriers to a technology and market driven DNS that should be removed.
>(By the same token, I am also in favor of removing NSI's obscenity policy
>and similar content restrictions).
>
>My argument is not an appeal to tradition (except in so far as it
>incorporates traditional notions of trademark law) or to the sacredness of
>DNS as constructed now. My argument is that we have a fundamental
>disagreement over what concerns should drive development DNS in the future.
>Should it be constructed to facilitate policy choices, or simply allowed to
>respond to market demand and technical need.
>
>By analogy, I offer the FCC's "public benefit" model for broadcast. In
>developing rules for radio and television, the FCC was charged with
>performing a public interest analysis and placing emphasis on preserving
>local markets. This had a profound impact on the development of the
>technology and the business model for broadcast.
>
>Mr. Schwimmer:
>
>>If there were several thousand instances in three years of TM owners
>complaining to >phone companies regarding trademark conflicts as to how
>1-800 numbers were allocated
>>the situations would be analogous.
>
>Correct me if I am wrong, but it appears to me that your sole argument for
>treating DNS issues differently from the rest of the trademark world is
>scalibility. I.E., because DNS presents an opportunity for infringement on a
>grand scale, something must be built into DNS to compensate for this.
>
>Mr. Schwimmer
>>The collision with the pre-existing body of rights known as trademark
>rights is
>>an externality of the business of selling domain names.
>
>At first glance, this would appear to mean that all trademark disputes
>involving domain names derive from cyberpiracy. Surely you do not mean
>that. The collision with
>the pre-existing body of rights known as trademark law comes from a variety
>of issues
>peculiar to the nature of the Internet (its global nature, its blurring of
>channels to
>the consumer, its facilitation of convergence of business out of the
>traditional
>categories) *and* DNS (the requirement that all names be unique).
>
>>From your previous emphasis on cyberpiracy, it is possible that you mean that
>the accommodation DNS should make pertain solely to the issue of
>cyberpiracy. In that case, I would question whether it is worth it to bend
>DNS out of shape for a matter
>which is rapidly becoming settled law.
>
>Mr. Schwimmer:
>>The DNS can take responsibility for this externality and work to minimize the
>>externality - or they are, to put the best face on it, bad citizens.
>
>The DNS is not a person, anymore than "the Trademark owners" are a person.
>Less so, in fact. "The DNS" is an inanimate collection of technology and
>protocols built over time to facilitate internetworking. It has a number of
>features that, at this point, relate to the purely technical function of
>moving packets from one IP address to another.
>
>The question becomes, what restrictions do we put on the development of this
>tool to facilitate what interests? What policies do we force those using
>the tool to follow to facilitate certain policies. Frankly, blaming "the
>DNS" for the problem of policing trademarks is like blaming paper and ink
>for copyright violations.
>
>Mr. Schwimmer
>>TM owners are not interested in rigging the DNSO to gain some type of
majority
>>(einar's hypo aside). They are in this debate because of the f*** you tone
>of Mr. Feld's
>>post. (If my expurgated term offends, I apologize - but it is the essence
>of Mr. Feld's
>>message).
>
>Certain trade organizations and Intellectual property lawyers are here to
>advocate for certain policies that will (A) help their clients, (B) make
>their lives easier, and (C) believe that this serves the public good. Other
>(myself included) oppose this because we (A) believe these changes hurt our
>clients (whom I stress at this point are *not* cyberpirates - so
>please do not raise that strawman in any response), (B) believe it will make
>our lives more difficult, and (C) believe that the proposed policies do not
>serve the public interest.
>
>This is a legitimate difference in views that occurs all the time before
>administrative agencies, legislatures, and courts of law. I fail to see why
>you resort to profanity simply
>because it is a position taken on a public list. You think the universe
>(and your clients) are better served if policies are implemented to curb
>what you believe are bad behaviors and to facilitate positive behaviors. I
>think the universe (and my clients) are better served by
>not implementing these policies. I appeal to traditional rules of trademark
>law, you respond that such rules were never conceived for this medium and
>that new policies must therefore be imposed. I respond that the nature of
>the medium is not that new (all new technological advances have some
>dislocating effect) and that the dimensions of the problem are exaggerated.
>Etc. We attempt to convince each other and the rest of the playing universe
>of the rightness of our respective views. On a practical level, we each
>evaluate what are core do/die issues, what are peripheral, where points of
>agreement can be reached, and how to implement a mutually satisfactory
>solution (if possible).
>
>I am, in fact, rather surprised at both the venom and vehemence of Mr.
>Schwimmer's response. You are a seasoned professional, justly regarded as
>knowledgeable in the field, doing sophisticated work for clients with
>particular, well defined interests. Why you feel the need not merely to
>disagree with (what seems to me, at least) an equally valid philosophical
>position, which serves as a starting point for policy analysis, but to use
>profanity and throw up your hands in disgust, is beyond me.
>
>It is precisely this sort of hardening of positions and disparagement of
>opposing views that has made it almost impossible to get constructive work
>done on these lists. None of the other professional lists to which I
>subscribe even come close to the level of heat displayed here, even on
>highly controversial do/die issues. When even seasoned professionals
>cannot remain civil, something is seriously awry.
>
>I wrote:
>
>>>As an aside, I will add that TM law seems to be adjusting fine, with no need
>>>for any radical adjustments on anyone's part.
>
>To which Mr. Schwimmer responded:
>>which conclusion can only be reached by ignoring the totality of the TM/DN
>conflict over >the last few years.
>
>On the contrary. Look to the trends as they are merging in the current law,
>and the statistics recently reported by Chuck Gomes on this list.
>
>Regarding law, I note the following:
>1) Courts in all reported cases have had no problem finding infringement in
>cases where companies have used names in a genuinely deceptive manner.
>
>1a) Obviously, dissatisfied plaintiffs will disagree regarding what should or
>should not constitute infringement, but this is no different from disappointed
>plaintiffs outside the Internet. This is why we have courts, to judge on
>specific facts whether a particular use infringes.
>
>2) Courts in all reported cases have found that "cybersquatting" in the
>sense of obtaining a laundry-list of famous names, is infringement.
>
>Outside the law, technical solutions and services are emerging to (a)
>facilitate
>enforcement by TM holders, and (b) alleviate consumer confusion. Furthermore,
>as the figures quoted by Chuck Gomes show, the rate at which the NSI
>policy is revoked is decreasing. Finally, I note that e-commerce generated
>more than $8 billion in revenues, and is expected to continue growing
>at an exponential rate. Looking beyond the narrow universe of TM concerns
>to the broader universe of e-commerce, the problems identified by TM holders
>are
>not causing much of a ripple.
>
>(We would do well to remember that businesses that go online are not here to
>horde
>trademarks, they are here to make money. TM protection is merely a tool to
>that
>end. As I have argued in the past (and continue to argue) I believe that
>policies
>that place unnecessary burdens on DN registrants will ultimately have
>negative consequences for ecommerce generally and the businesses that have
>pushed for these policies. Consider the telephony market as an example of
>this. The money AT&T can make in today's enriched telephony market is
>probably more than it could have made as a monopoly provider, in addition to
>all the other wealth generated in the world as a result of divestiture.)
>
>There are, of course, areas of law that remain in contention and that have
>not yet settled.
>For example, we still have no good law regarding "oops sites" (sites that
>rely on the
>misspelling of famous word). Courts, however, are working these problems out.
>
>Given that ecommerce has only been around in earnest for a few years, it is
>not surprising that the law is taking some time to work the kinks out. The
>question (and it is certainly subject to reasoned debate) is whether the
>time it will take the legal processes to resolve these issues, and whether
>the answers the legal processes will ultimately develop, impose costs so
>high that we must preemptively decide these issues by imposing restrictions
>on the
>DNS.
>
>Mr. Schwimmer concludes:
>>Note the contradictory tone - there is no problem - accommodate yourself to
>the problem.
>
>You have misunderstood me. Allow me to state the proposition more plainly.
>
>a) As a philosophic matter, I believe that development of the DNS should be
>driven purely by market forces and technological restraints. I find global
>policies enforced on
>unwilling market participants that are designed to "enhance commerce" or
>protect intellectual property as abhorrent as policies designed to
>facilitate national
>content, support localism, bar content deemed harmful, etc. (all of these
>are policy
>goals advanced by other regulatory bodies, why should these policy goals be
>slighted?)
>
>b) As a practical matter, the DNS currently exists in a particular form.
>This form presents
>opportunity for good behavior (ecommerce, public expression) and bad behavior
>(infringement, consumer fraud).
>
>c) Again as a practical matter, you and your clients face problems with
>specific bad actors
>who exploit the potential of the DNS for what you perceive as bad ends.
>
>d) Back to philosophy, the question becomes how to deal with specific bad
>actors.
>
>e) Your proposal is that the mechanism that permits these bad actors to
>perform their bad acts should be modified to reduce the potential for bad
>acts. This is justified,
>if I understand you correctly, because the sheer scale of the problem makes
>any other
>solution impractical, because doing so will also facilitate the potential
>for good behavior,
>(notably ecommerce), because other good behaviors will not be infringed to a
>significant
>degree, and because the mechanism that facilitates bad acts somehow bears
>responsibility for the bad acts.
>
>f) I, on the other hand, believe that no modification of the basic mechanism
>is necessary, as other mechanisms exist that are less burdensome to the
>population as a whole. Rather, it is appropriate to place the burden on the
>party most affected, as is traditional in our system of law. The scale in
>question, while presenting challenges, does not make traditional mechanisms
>impossible. Furthermore, the suggested modifications would have significant
>consequences for good actors and discourage good actions. In addition, the
>proposed solution sets a bad precedent by acting against an inanimate system
>and imposing burdens on good actors thereby rather than solely punishing bad
>actors. Finally, I argue that society is better served by preserving the
>maximum freedom of action and freedom for the marketplace.
>
>g) You have also made the argument that burden on existing stakeholders is
>sufficiently severe to warrant immediate and dramatic relief. I disagree as
>both a factual matter and a policy matter. I argue that your solution
>creates a potential for bad behavior in the form of reverse hijacking. You
>disagree.
>
>Thus, to address the quoted statement, there is no contradiction in message.
> Individual people will have problems no matter what happens, just as
>individuals have problems regarding trademarks outside the Internet. I am
>sympathetic that your clients feel they are injured under the existing
>system, but I feel the relief they want is too high a price.
>
>This does not preclude reaching a practical compromise. Such compromises
>are reached every day, despite divergent worldviews. There is no need for
>you to win the philosophical war to negotiate a settlement, anymore than
>there is need for one party or another to admit guilt in a judicial
settlement.
>
>Harold
___________________________________________________
Roeland M.J. Meyer -
e-mail: mailto:[EMAIL PROTECTED]
Internet phone: hawk.lvrmr.mhsc.com
Personal web pages: http://staff.mhsc.com/~rmeyer
Company web-site: http://www.mhsc.com
___________________________________________________
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