To understand the personalities and agendas of the players, please consider these observations from the gTLD-MoU days. http://www.media-visions.com/newdom.html. Go Exploring! Ken Freed, Publisher Media Visions Webzine (a journal of global sense) http://www.media-visions.com >If you support this document, send mail to [EMAIL PROTECTED] telling >him so. > > >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 > > > > >-- >[EMAIL PROTECTED] http://ph-1.613.473.1719 >It's about travel on expense accounts to places with good beer. - BKR
