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I am not sure that I can completely respond to you questions, but let me at
least take a crack.
First, contrary to the assertion in your posting, the Board did not
endorse a "expand-WIPO-arbitration strategy" in its Berlin resolution.
WIPO recommended
arbitration only for disputes involving abusive registrations. What the
Board resolution endorsed
was the "principle that a uniform dispute resolution poicy should be
adopted for Registrars in the
.com, .net, and .org Top-Level Domains (TLDs)." Endorsing a uniform **
dispute resolution**
policy among registrars doesn't say anything about whether and in what
circumstances the policy
should include **arbitration**. It is entirely possible that any policy
adopted would use arbitration
only for disputes involving abusive registrations, with other types of
disputes being handled by the registrar doing nothing until the registrar
receives court
instructions. The provisions of the policy ultimately reached through the
ICANN process, of course, depends
on the first instance on the recommendations made by the DNSO. But it
would be a misreading
of the Board resolution to see it as endorsing arbitration in any
particular instance or of any
particular type.
Second, as I understand it, the arbitration recommended by
WIPO only deals with taking down names and, although it is not contemplated
to be subject to
direct judicial review, it is expressly stated to be without prejudice to
judicial actions any party
wishes to file. Thus, if an arbitration decision is considered to be
wrong, a party would still be able to file a lawsuit
and have the issue reviewed.
Third, I do not believe that you are correct in stating that the Board
endorsed arbitration for "cases
where reasonable people can disagree." See my first point above. Also, I
don't see why you would conclude
that anyone waives their right to go to court when the WIPO recommendations
expressly state there is no such waiver.
As to your "slippery slope" argument, it is a legitimate concern, but I
hope (and think) that we have not started down it here.
There is in fact a principled distinction between having a domain-name
dispute resolution policy and content
censorship. Assignment of unique DNS names indisputably involves, in your
words,
"technical issues regarding names and numbers." Having a policy for
handling disputes over these
unique assignments is essential to performing the required technical
function; having a uniform
policy among registrars in a registry is important to ensuring stability.
The uniform dispute policy
thus involves a technical-management function, even though the policy may
substantively seek to
assign names in a manner intended to avoid conflict with non-technical
policies (i.e. trademark
law). Regulating the content of web pages ("copyright or offensive
content") does not seem to
involve any technical management function. The Internet (including the
DNS) works as well
regardless of what is on particular web pages (with the possible exception
of virus-laden pages,
etc.). So the distinction is: DNS dispute policy involves a clearly
technical function arising from
the name-uniquenss requirement, although addressed in a way to avoid
unnecessary conflict with
non-technical values; web-page content regulation would seem to be an issue
with no technical
function involved whatsoever.
