> What is it about domain names that make them unique and make
> speculation unlawful?
>
Obviously, its nothing inherent in itheir domainicity; it has to do
with the way human culture develops. As Rob Raisch points out,
there are no absolute hooks on which we can hang anything;
everything is a trade (-off) -- and the way Homo sap does that is to
'reify' one notion or another *as if* it is absolute. For instance, a
certain code says one shall not take another's life -- but it doesnt
really mean all life, ever or we wouldnt be here to appreciate its
ethical elegance. (Another culture, which held eating anything alive
to be unethical, would be aghast at your drinking unpasteurized
milk.)
So its not that DN speculation is *absolutely unlawful, but only that
it trashes the lines which have been (laboriously) set up to
distinguish 'things' from 'names of things.' In particular, a
trademark is a mark of *trade, a name of a thing; and trademark
law is grounded in the manner and scope of that trade.
Nor is the issue restricted to domain names; in fact the Digitization
of Practically Everything is bringing down these 'conventional' walls
everywhere, and lawmakers and educators and service providers
and medicos and software engineers are all scrambling for the
highest ground they can find -- it hardly matters whether they are
trying to salvage some vestige of order or meaning from the Old
Ways, or to anticipate what will be needed in the New Ways, or to
capitalize of the ambiguities of the transition as people who never
thought they would see a real live revolution come to realize they
are in the midst of one. It doesnt matter, because the only tools
they have to do anything are old tools (case law, professional
standards, intergovernmental treaties, IETF standards, etc) -- like
somebody trying to use a nail hammer when the power is off,
they're clicking and clicking on the trigger because 'that's how it
works' - but it doesnt.
Lawyers, of course, think they're sitting pretty -- chaos is their
stock in trade -- and TM lawyers in particular think they can hold
the thing/name (object/pointer, pipe/content, news/entertainment,
etc etc) line better than anyone else because names are their
game -- in reverse. "Ford Motors" *is* Ford Motors, as long as Ford
has anything to say about it, and theyre not going to quit saying it
just because a bunch of upstarts have found a way to say things
like Forrd or ForkMotors or whatever, on the grounds thart they're
'just names' or 'strings' or 'pointers to IP numbers.'
The interesting thing is that this legal fiction, this putative *identity*
of name and thing, is grounded in what was (once, at least) a real
aspect of trade called 'goodwill.' I myself am waiting for the court
case that decides that in e-commerce, there is no goodwill, and
therefore no infringement.
When in doubt, go back to the basics (de Tocqueville didnt say
that, but he should have ;-) ; if highly-evolved walls dont hold, the
old-time *real-time* ones do. Make every contract purely de facto,
between two specific parties, an interested buyer and a willing
seller. Deal first with _quid pro quo_ and let the devil take whatever
goodwill he can find in it. Now, it may take a year or two to get the
hang of it again, but in due course, the *meaning of goodwill will be
reinvented when its value is appreciated by *people -- not just their
legal representatives. (The same goes for that other bit of business
terminology: the sooner we get shut of the 'consumer' label and go
back to being 'customers,' the happier we'll be. I guarantee it.)
=======
"How do we decide how we decide" the future of the domain
name system? The global, shared nature of the Internet -- as
well as its track-record for self-regulation -- present new and
open questions concerning the structure and legitimacy of
institutions and processes for governing... (http://www.cdt.org/ )
The writer is certainly raising the right question -- but I suggests its
only new to those who have forgotten it, because its been around
for ages. To date, the Internet has been sharing highly cultivated
ignorance; isnt it high time it accepted the *fundamental nature of
information, and started sharing a little globally common sense?
kerry
