Gordon Cook wrote:
<snip>
> The "naming and addressing system" is NOT a "public resource. The
> language is straight out of the gTLD-MoU. It is a clear unconstitutional
> taking of private property.
<snip>
I've held back on all of the other ridiculous claims in this thread but this
is the one that always gets me going.
Some clarifications about private property and identifiers.
You do not own your domain name. You do not own your phone number, your
street address, or IP numbers.
And here's another one: you don't own your trademark either. You hold
certain rights, recognized by courts with respect to common law trademarks,
or granted by the state under statute with respect to registered trademarks.
If you stop using your trademark, or if you don't renew the registration for
it, or if the registration is expunged, you may cease to hold those rights.
It is not a matter of 'owning' a trademark. It is a matter of holding
certain rights in relation to a certain string of characters or distinctive
design which are recognized or granted by public authorities.
Yes, trademarks appear to be capable of being 'bought' and 'sold', but what
really happens in such a transaction is that the 'seller' promises to ask
the registration authority to change the name of the registered holder to
that of the 'buyer.' Nothing is actually bought or sold, but rather value
is given in exchange for an apparent 'transfer' of the relevant rights. No
property is transferred. _Rights_ are _assigned_. Very different.
Getting back to domain names, I'll ask the same question I've been asking
for almost a year. If you own your domain name, who owned it before you?
Many on this list rail against the idea of 'ownership' of the name space
being 'transferred' to ICANN. I agree that that would be a bad thing. It
simply does not make sense to speak of ownership of domain names at all.
Domain names and IP numbers are identifiers. We know that domain names have
vastly more commercial value than IP numbers, but functionally they are
almost identical. Neither can be owned, and neither IANA, the regional
number registries, NSI, nor even the USG own them. Certain agencies
currently assign their use to certain people. These assignments are not
transfers of ownership. Domain name holders must pay renewal fees to
continue using them. You do not pay renewal fees to keep owning something.
If you stop paying these fees, or for some reason your assignment of a
particular name is withdrawn, you lose the right to continued use of that
name. Ownership is not transferred to (or back to) anyone.
Thinking back to the earliest days of ARPANET development, when surely the
property rights of which you speak must have sprung, can you find any record
of any awareness of 'ownership' of the identifiers used in the network? Did
the operators of new nodes have to pay somebody for their identifying
number(s)? Even though an 8-bit address field limited the number of sites
to 256, there was no sense that these resources should be auctioned to the
highest bidder. Numbers were simply assigned for use by sites. When more
numbers were needed, the address field was expanded and new numbers
assigned. And everybody carried on using the numbers, without speculating
in them.
Consider the words of the only authoritative administrator the Internet name
space has ever had, referring to designated managers of TLDs, in RFC 1591:
"Concerns about 'rights' and 'ownership' of domains are inappropriate. It is
appropriate to be concerned about 'responsibilities' and 'service' to the
community." Ownership has clearly never been contemplated with respect to
the name space, and I would ask those who refer to the transfer of
responsibility over the name space as "a clear unconstitutional taking of
private property" to explain to me just what elements of the DNS constitute
private property. Servers, yes. Routers, yes. But the names and numbers
themselves? Was Jon Postel just plain wrong? I doubt it.
Now much like the trademark example, these days it is common to refer to
owning domain names and buying and selling them and whatnot. This is
because registration of names, like trademarks, provides for exclusive use,
which does start to look like ownership after a while. Because such
registrations can have significant commercial value, we need a stable,
authoritative registration authority which can assign exclusive use rights
and attest to such assignment in the face of challenges from others who say
they should hold those rights instead. The US Patent & Trademark Office,
for example, is just such an authority. It is a creature of statute and is
recognized by the US courts as the sole authority in the field.
Much like the _global_ trademark 'name space' (as opposed to the national),
the Internet name space is not nearly so unified or legally stable. We are
currently searching for a stable, recognized authority over domain names.
If we don't have one, then, among other things, the likelihood of name
collisions increases, with a resulting loss of usefulness of the DNS
generally. For some people, that would be just fine. For others, that
would be unacceptable. But what could really muck things up is if people
think that the framework of analysis for domain names (and the associated
systems surrounding them) is one of *ownership* instead of *use*. It's one
thing to say that characters can be exclusively used, but quite another to
say that they can be owned.
I don't like ICANN all that much either, but consider this a plea to those
on all sides of this debate to avoid using concepts of ownership in their
analyses and refer to concepts of use (yes, even exclusive use), instead.
What we're all trying to figure out is who has (or should have) the
authority to make exclusive assignments of Internet identifiers (and on what
terms), not who owns what. The difference is fundamental to the nature of
the Internet (think Open Source vs. proprietary code) and will play out in
many aspects of Internet architecture and policy as the network continues to
develop.
Craig McTaggart
Graduate Student
Faculty of Law
University of Toronto
[EMAIL PROTECTED]
