Re: [IFWP] .US ?

[Michael Froomkin - U.Miami School of Law]

very little advertising domestically, for one.

On Sun, 28 Apr 2002, Marc Schneiders wrote:

> Why does it look as if .US is not very much in demand? Many short
> words are still available. 
> 
> inject.us
> injection.us
> 
> Any ideas why?
> 
> 

-- 
Please visit http://www.icannwatch.org
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
-->It's hot here.<--

Re: [IFWP] Re: IFWP_LIST V1 #950

[Michael Froomkin - U.Miami School of Law]

The web site was recently changed.  It didn't say that originally.
Cf. http://www.icannwatch.org/article.php?sid=450

On 10 Nov 2001 [EMAIL PROTECTED] wrote:

> A short trip to ICANN's website clears it up.
> 
> http://www.icann.org/mdr2001/
> 
> Under "Sponsorship Opportunities", they emphasize the words "commercial 
>materials" in their request for a $5k fee.  Political materials would certainly be 
>permissible.
> 
> Fact is better than rumor when propagandizing, kids.
> 
> Ob. swipe:  If you enter "icann.org" in your browser, you get an error.  You have to 
>enter "www.icann.org".  Geniuses.  Bloody, ironic, geniuses.
> 
> --Blair
> 
> 
> 
> 

-- 
Please visit http://www.icannwatch.org
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->It's very hot and humid here.<--

[IFWP] Were you consulted?

[Michael Froomkin - U.Miami School of Law]

As you may know, ICANN suddenly announced last week that it has formed
Election and Nominating Committees, without any visible public input.  
The announcement is at
http://www.icann.org/announcements/icann-pr09may00.htm .

Commentary suggesting that there were a few flaws in the process can be
found at http://www.icannwatch.org

In response to this criticism, ICANN CEO Mike Roberts is quoted in today's
New York Times as saying that "Icann directors and staff worked hard to
consult widely in the process of forming these committees,"
http://www.nytimes.com/library/tech/00/05/cyber/capital/16capital.html .

As far as I can tell, no one I know was consulted, and am I in touch with
a lot of people interested in ICANN.  My suspicion is that if ICANN did
engage in consultations at all they were limited to participants in the
late gTLD-MOU and/or representatives of large corporations.

In order to test this intuition, I would be very interested in hearing
from anyone who was actually consulted by ICANN prior to this
announcement, whatever their affiliation.

[This message is being cross-posted widely; please feel free to circulate
as appropriate until May 25, 2000]
--

A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
-->It's warm here.<--

Re: [IFWP] Domain Names go to the Dogs!

[Michael Froomkin - U.Miami School of Law]

Perphaps you could claim it is confusingly similar? :>


On Thu, 30 Mar 2000, Ellen Rony wrote:

> You know, we registered rony.com but didn't have the vision to get irony, too.
> 
> Richard Sexton wrote:
> 
> >File this one under "irony".
> 
> >>Return-Path: <[EMAIL PROTECTED]>
> >>Delivered-To: [EMAIL PROTECTED]
> >>From: <[EMAIL PROTECTED]>
> >>To: <[EMAIL PROTECTED]>
> >>Subject: Domain Names go to the Dogs!
> >>Date: Thu, 30 Mar 2000 17:52:13 -0700
> >>X-MimeOLE: Produced By Microsoft MimeOLE V4.72.3110.3
> >>
> >>Hello!
> >>
> >>I thought you might be able to take advantage of our affiliate program.
> >>
> >>Domain names are now available for as low as $19.50 per year! ($17.55 per
> >>year after your affiliate commission)
> >>
> >>There will be 140 million domain names registered in the next 3 years!
> >>Take advantage of our site! Our affiliate program offers 10% commissions
> >>on all domain names sold through your site. It's easy, It's fast, It's
> >>free!
> >>
> >>Not only will you and your clients enjoy one of the lowest prices on
> >>domain names, but managing them is a snap with our web-based interface! No
> >>more annoying e-mails to internic to make changes in your domain
> >>information.
> >>
> >>Browse to http://www.InternetRegistration.com/e.php?e4 'The Spotcom
> >>people' and click on affiliates to learn more.
> >>
> >>Thank you for your time.
> >>
> >>Marlo Newman
> >>Managing Director InternetRegistration.com
> >>E-mail: [EMAIL PROTECTED]
> >>
> >>
> >
> >--  http://www.hungersite.org/cgi-bin/donate.pl
> >Richard Sexton  |  [EMAIL PROTECTED]  | RS79 on eBay and InterNIC
> >http://killifish.vrx.net http://www.mbz.org http://lists.aquaria.net
> >Snail mail: "Maitland House, Bannockburn, Ontario, Canada, K0K 1Y0"
> 
> 
> -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-
> Ellen Rony//  http://www.domainhandbook.com
> Co-author  *="   /[EMAIL PROTECTED]
> The Domain Name Handbook  \ )  +1  415.435.5010
>   //   \\ "Carpe canine"
> 
>   The more people I meet, the more I like my dog.
> 
> 
> 
> 

-- 

A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
-->It's warm here.<--

Re: [IFWP] Fwd: Re: [names] Consensus on "consensus"

[Michael Froomkin - U.Miami School of Law]

I would like to note for the record that participation does not equal
consent in an ad hoc process of this sort.  That is especially the case
where the process is continually changed (I will not say "manipulated") so
the ground rules do not remain consistent.  Statements of this sort are in
my opinion irresponsible and counter-productive, as they suggest that
those of us on the outside might as well just stay away.  

It is even more true when the notice periods for comments in an
international process are so short. 

I remain shocked by the claim I have heard from ICANN that the SEVEN DAY
notice period that the registrar's draft would become the basis for
ICANN's adoption -- a draft written in secret by one group -- is somehow
the basis for consensus adoption of the UDP rules.

Since I never had actual notice that this was the ICANN plan -- who would
have thought to look for the one line notice buried in the agenda -- I
cannot be said to have consented or participated in any meaningful way.
[Note that before ICANN took this action of adopting the registrar
language it was previously saying that the registrars would act on their
own, without ICANN involvmenet.  There was no reason to expect the ICANN
u-turn on this issue, and there was no warning.  Don't look for a week
and , pow!, you are part of the consensus?  I don't think so.]

I think ICANN should adopt an iron-clad rule that all public notice
periods should be 30 days.  Nothing less will do.  

On Fri, 8 Oct 1999, Jay Fenello wrote:

> 
> 
> FYI:
> 
> 
> >Date: Fri, 08 Oct 1999 10:34:05 -0400
> >To: Becky Burr <[EMAIL PROTECTED]>,
> > "[EMAIL PROTECTED]" <[EMAIL PROTECTED]>,
> > [EMAIL PROTECTED], [EMAIL PROTECTED],
> > [EMAIL PROTECTED], Esther Dyson <[EMAIL PROTECTED]>,
> > Mike Roberts <[EMAIL PROTECTED]>, [EMAIL PROTECTED]
> >From: Jay Fenello <[EMAIL PROTECTED]>
> >Subject: Re: [names] Consensus on "consensus"
> >Cc: [EMAIL PROTECTED]
> >
> >
> >At 08:41 AM 10/8/99 , Joe Sims wrote:
> >>___
> >>
> >>
> >>  This message is intended for the individual or entity named above.  If you
> >>are not the intended
> >>  recipient, please do not read, copy, use or disclose this communication to
> >>others; also please
> >>  notify the sender by replying to this message, and then delete it from
> >>your system.  Thank you.
> >>___
> >>
> >
> >
> >Hi Joe,
> >
> >It looks like Jonathan invited in
> >some reinforcements.  Welcome . . .
> >
> >
> >>with all due respect, one person's "manipulation" of consensus is another
> >>person's "recognition."  The best test of whether ICANN is in fact a
> >>consensus-based organization is whether most of the Internet stakeholder
> >>constituencies are working within and with ICANN to help it succeed.
> >
> >
> >IMHO, that's a ridiculous claim.
> >
> >I suppose you would also claim that the
> >Soviet Union had total support from its
> >citizens, because virtually all of them
> >voted in their national elections!
> >
> >Almost every organization that I know
> >that is participating in ICANN, is doing
> >so to try and mitigate any more damage
> >from ICANN.
> >
> >
> >>I would submit that the roster of ICANN participants -- by definition
> >>those who think that ICANN is functioning satisfactorily as a
> >>consensus-development body -- is rather larger than the lineup of those,
> >>like David, that happen to disagree with policies or procedures that the
> >>majority of stakeholders have created through the ICANN vehicle, and define
> >>that disagreement as "manipulation" of consensus.
> >
> >
> >Up is down,
> >Good is bad,
> >Black is white,
> >Welcome to 1984!
> >
> >Maybe you missed it, but we've just been
> >told that the entire reason we are using
> >consensus instead of voting is to give
> >minority voices a chance to be heard.
> >
> >Your response, however, is typical.  If
> >the minority doesn't comport with ICANN's
> >agenda, then they are marginalized, even
> >when it includes legal scholars like a
> >David Post and Larry Lessig, or consumer
> >protection organizations like Ralph Nader's
> >CPT and the Small Business Administration.
> >
> >But then again, this only proves my point.
> >
> >Using the arbitrary definition of consensus
> >provides those in power with a tremendous
> >amount of discretionary power.  Your comments
> >only confirm how this power can be abused.
> >
> >Jay.
> >
> >
> >>
> >>  (Embedded
> >>  image moved   David Post <[EMAIL PROTECTED]>
> >>  to file: 10/07/99 10:34 PM
> >>  pic08406.pcx)
> >>
> >>
> >>
> >>Extension:
> >>
> >>To:   [EMAIL PROTECTED]
> >>cc:(bcc: Joe Sims/JonesDay)
> >>Subject:  Re: [names] Consensus on "consensus"
> >>
> >>
> >>
> >>
> >>At 01:32 PM 10/7/99 -0400, Jay F. wrote:
> >>[snip]
> >>
> >> >When the minority strongly objected to the
> >> >ICANN by-laws that had no constraints 

Re: [IFWP] failure notice

[Michael Froomkin - U.Miami School of Law]

Yes, but they've just been slashdotted...


  On Thu, 7 Oct 1999, Richard J. Sexton wrote:

> >Return-Path: <>
> >Delivered-To: [EMAIL PROTECTED]
> >Date: 7 Oct 1999 14:30:19 -
> >From: [EMAIL PROTECTED]
> >To: [EMAIL PROTECTED]
> >Subject: failure notice
> >
> >Hi. This is the NetZero mail server.
> >I'm afraid I wasn't able to deliver your message to the following addresses.
> >This is a permanent error; I've given up. Sorry it didn't work out.
> >
> ><[EMAIL PROTECTED]>:
> >Account mailbox is full.  No new email accepted.
> 
> Aren't these the guys who sell the free domain names?
> 
> Richard
> Jacking in from the you-get-what-you-pay-for department
> 
> 
> 
> 
> --
> [EMAIL PROTECTED][EMAIL PROTECTED]
> "Sometimes you have to have patience with things that annoy you."
>   -Xena, "Xena: Warrior Princess"
> 
> 
> 

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and damp here.   <--

Re: [IFWP] Analyzing ICANN - The committee that would be king

[Michael Froomkin - U.Miami School of Law]

Sorry, the previous post was in relation to the earlier draft.

It wasn't that it was disruptive to operations. It was POLITCALLY scary...

On Fri, 10 Sep 1999, Ken Freed wrote:

> Perseverence furthers. How's this for historic accuracy?
> 
> "Evidently exhibiting his displeasure with the situation, Jon Postel at
> IANA issued an electronic directive that "reoriented" the path used for
> copying the root zone file to the various root servers, potentially
> disrupting global Internet traffic. Performed in conjunctionwith root
> server operators, this act of civil disobedience could not be ignored. The
> combination of international protest and Postel's action effectively killed
> the Green Paper. Back to the drawing board."
> 
> Now, can we get on with discussing the real issue of ICANN legitimacy and
> whether we allow privatization to go forward without a public vote?
> -- ken
> 
> 
> 
> 
> 
> 
> >Ken,
> >
> >> Below is the rewritten paragraph from
> >> http://www.media-visions.com/icann-gtld.htm
> >>
> >> "Evidently showing his displeasure with the situation,
> >> Jon Postel at IANA issued an electronic directive that
> >> "reoriented" or redirected routing on some root servers.
> >> By temporarily disrupting portions of Internet traffic, his
> >> statement could not be ignored. The combination of
> >> international protests and Postel's action effectively
> >> killed the Green Paper. Back to the drawing board."
> >
> >You still don't have the facts correct. Jon Postel's action did not
> >disrupt any Internet traffic at all. It did not and it could not.
> >Nor was it an action by Jon Postel alone. It was an action between
> >most of the root server operators and only concerned the path
> >in which the root zone file is copied to the various root servers.
> >
> >Regards,
> >
> >Werner
> >
> >
> >--
> >Tel: +41 22 312 5600  Direct line: +41 22 312 5640  http://axone.ch
> >Fax: +41 22 312 5601  2 cours de Rive   CH-1204 Geneva, Switzerland
> 
> 
> 
> 
> 

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] My nose

[Michael Froomkin - U.Miami School of Law]

The invitations are not very attractive - non voting status only.  

Imagine the tables were turned, and there were an individual constituency,
and the IP holders were invited as non-voting observers.  Would they be
happy?  I doubt it.

On Wed, 1 Sep 1999, Esther Dyson wrote:

> And the IP constituency has *invited* individual members.
> 
> Esther
> 
-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] Letter from Santiago

[Michael Froomkin - U.Miami School of Law]

FWIW some of us think Berkman did a great job.

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] Latest on the Australian censorship

[Michael Froomkin - U.Miami School of Law]

On Sat, 28 Aug 1999, Joe Sims wrote:

> the
> bylaws make no mention at all of GAC having anything at all to do with
> ICANN's "legal obligations", and they are perfectly clear that ICANN is not
> required to follow any GAC advice.  

FWIW, I have always read the bylaws exactly the same way. 

The issues that matter strike me as completely political and not a bylaws
issue.  Would ICANN have the spine to stand up to a strong demand by
governments that, e.g., a ccTLD be reassigned?

One might more profitably enquire if there is any law *external* to the
bylaws (e.g. national law, or even international law) that would require
some compliance by ICANN.  I know of none at present, but I have not
looked.

There are some things in the bylaws that I find open to interpretation or
confusing, but the fact that GAC as a formal matter has a right to be
heard and no more seems fairly clear to me, and Tony hasn't been able to
persuade me otherwise.

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] archive unavailability

[Michael Froomkin - U.Miami School of Law]

http://cyber.law.harvard.edu/icann/santiago/realtime/GAC-Comminuque-mtg3.html

gives the GAC document

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] ANNOUNCE: ICANN-Santiago Remote Participation

[Michael Froomkin - U.Miami School of Law]

Combo sounds good to me. 

I will say that if someone has to be the moderator IMHO it would be hard
to pick someone better than Prof. Zittrain.  But they won't always be that
good -- so adding in a little dash of randomness to season the sauce
sounds about right

I strongly agree that FIFO is a very lousy rule.

On Mon, 23 Aug 1999, Ben Edelman wrote:

> Ellen suggested:
> 
> > Appropriate first tier filters would be:
> > a) deferring off-topic comments
> > b) acknowledgikng one comment per individual per topic
> > c) curtailing long responses beyond 250 words.
> 
> These are a good start.  Indeed, they're filters we definitely need and
> absolutely intend to put in place through a combination of code and
> discretion of the Berkman staff.
> 
> But what do we do if there just turn out to be too many comments that pass
> these three criteria?
> 
> Some ideas off the top of my head:
> 
> * FIFO (first-in-first-out).  We've got time for, say, eight remote comments
> per agenda item.  First six people to send their messages get read (say, in
> their entirety), others go into the archive.
> 
> * Moderator's Choice.  A Berkman staff person -- primarily Professor
> Zittrain, for those of you wondering! -- reviews all the messages received
> prior to the first time remote comments are recognized on a particular
> subject, and he reads the ones that he thinks are most significant.
> "Significant" is of course the tricky part -- he could look for views not
> already stated by physical participants, but then the majority voice is
> artificially weakened by his selection process so that doesn't seem quite
> right.  He could look for messages that seem most thought-provoking from an
> academic perspective, but neither is that quite what we need.  Yet if one
> placed sufficient trust in Mr. Zittrain -- as I'll admit I personally do,
> make no mistake about it -- this could be acceptable.
> 
> * Randomly, as Michael Froomkin suggested.
> 
> * Some other way, including perhaps some combination of the above.  I do
> like the idea of combining random selection with some other method -- say,
> take seven messages selected by whatever process is used primarily, then one
> random message from the remainder.
> 
> I really do think this is a hard problem.  Personally, I'm totally
> dissatisfied with the incentives of FIFO ("write early and you'll get
> recognized, quality no matter").  But, I can understand why Moderator's
> Choice isn't appealing to those who, for whatever reason, just don't trust
> the particular individuals doing the job, perhaps preferring a system that
> goes beyond the moral character of the staff involved.
> 
> 
> > I thought the mix of remote participation and physical participation at
> the
> > Names Council meeting on June 25 worked fairly well, with a large screen
> at
> > the front of the room. The pNC checked the screen occasionally, but
> > haphazardly.  Fairness dictates building those checks into the physical
> > agenda every ten or fifteen minutes.
> 
> I'm not familiar with the particulars of the NC's remote participation, but
> their methodology sounds reasonable.  Yet realize that it's not so hard to
> do remote participation a small, low-volume scale.  Indeed, from my
> recollections (admittedly just that, but I think likely reflected in the
> comments on this list) of the remote participation on the DNSO and GAC
> meetings on the first day of Berlin, things go well with remote
> participation until some critical point of messages-received-per-minute is
> reached.  When below the threshold, it's easy to choose messages -- just
> apply baseline criteria like the three Ellen suggested above, and indeed
> that's what we did that first day.
> 
> But the question in my mind remains: What do you do when there are too many
> acceptable, on-topic, concise remote comments?  How to choose?
> 
> 
> 

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] ANNOUNCE: ICANN-Santiago Remote Participation

[Michael Froomkin - U.Miami School of Law]

I was (too subtly?) hinting that they should write their messages out
and be subject to the same word and
interest-in-the-eye-of-the-filtering-authority  limit. Only fair?  

PS. Is the time limit based on the equivalent of 250 words?  Or is the
250 words based on the time limit?  Or neither?

On Sun, 22 Aug 1999, Diane Cabell wrote:

> The Chair uses a timer for physical speakers.
> dc
> 
> Michael Froomkin - U.Miami School of Law wrote:
> 
> > On Sun, 22 Aug 1999, Ben Edelman wrote:
> > >
> > > That said, there will be two new rules about remote comments.  First, that
> > > no comment can be longer than a length still to be decided but likely about
> > > 250 words.  We don't intend to be mean about this -- but longer comments are
> >
> > So long as the same rule is imposed on physically present speakers, I have
> > no major objection.
> >
> 
> Diane Cabell
> http://www.mama-tech.com
> Fausett, Gaeta & Lund, LLP
> Boston, MA
> 
> 
> 
> 

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

RE: [IFWP] ANNOUNCE: ICANN-Santiago Remote Participation

[Michael Froomkin - U.Miami School of Law]

On Sun, 22 Aug 1999, Ben Edelman wrote:
> 
> That said, there will be two new rules about remote comments.  First, that
> no comment can be longer than a length still to be decided but likely about
> 250 words.  We don't intend to be mean about this -- but longer comments are

So long as the same rule is imposed on physically present speakers, I have
no major objection.  

I do fear that the consequence is that you will have "questions" over
reasoned debate.  As a result, measuring "consensus" coming out of such a
process becomes ever more problematicI'm not sure, though, I have a
better alternative (again, assuming the same process applies to the
physically present).

Since written comments including those unread will, I gather, be
world-readable, I guess people can give URLs for more detailed stuff if
they need to.

> In conclusion: We're trying, folks!  I'm working about as hard as I can
> here -- did email for quite literally two hours a day while on "vacation"

As usual I give the Berkman team near-perfect marks.  You guys should pat
yourselves on the back a few times.  I wish I could say the same for
ICANN.

One stray thought: how about having a few emails selected at random, just
to blunt charges of selection bias?

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] ANNOUNCE: ICANN-Santiago Remote Participation

[Michael Froomkin - U.Miami School of Law]

I hope very much that the practice in Berlin of "editing" and
"summarizing" comments will be kept to a minimum, at least in the case of
comments of less than a page.  I submitted a short comment, only to have
it reduced to two sentences, losing one of my two points.  And that was
the only e-mailed comment read out that entire day

Otherwise, how about having people in person also submit their comments in
writing on index cards and having them go into the same pot as the
e-mailed ones?


On Sun, 22 Aug 1999, Ben Edelman wrote [to IFWP]:
[...]
> 
> What we'll have in Santiago is a refined version of the comment-submission
> system we provided in Singapore and Berlin.  As
>  describes: "Online
> participants will be able to submit text comments in real-time. Questions
> and comments submitted over the Internet will be sent to technical staff
> present in the meeting room. Those real-time messages relevant to the topic
> currently being discussed will be processed by the moderator who will select
> certain messages for presentation to the assembled group for a response
> similar to that provided to a concern raised at a microphone in a Q&A
> session. All messages will be archived on this site."
> 
> Note that the "real-time comment submission system" is different from the
> "real-time chat system."  The latter is a simple unmoderated text chat -- an
> IRC chat, in some ways comparable to the ICQ or AOL Instant Messanger
> programs that some of you may be familiar with.  It's something that many of
> you requested after Berlin, and we think & hope it'll be helpful.  But do
> note that comments made in the real-time chat area won't be reviewed by
> Berkman staff in Santiago -- there just aren't enough of us to go around!
> So, use the "comment submission system" to send "official" comments, and use
> the "chat" area to get a feel for who else is online, perhaps to debate
> ideas or see where other online participants stand on particular issues.
> But do realize that the real-space group may never see your "chat"
> messages -- although they will be archived and posted in the Santiago
> archive site that we'll be creating during the course of the week.
> 
> I understand that these two features are somewhat confusing -- especially as
> I explain them now.  But I think the interface we've prepared will do a
> reasonable job of making clear what's appropriate to use when... and if it
> isn't, specific suggestions are welcomed & very much appreciated to the list
> or off-lits to me and John Wilbanks ([EMAIL PROTECTED]).
> 
> 
> Ben Edelman
> Berkman Center for Internet and Society
> Harvard Law School
> 
> 
> 

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] IDNO letter

[Michael Froomkin - U.Miami School of Law]

Might one ask who made this agenda-setting decision, and when? 

On Fri, 20 Aug 1999, Esther Dyson wrote:

> Dear Joop and colleagues -
> 
> I'm writing to respond personally to your proposal for an Individual Domain
> Name Holders' Constituency.  As you know, the Initial Board decided not to
> consider it in Berlin because it was not among the seven constituencies we
> hoped to see form to constitute the full DNSO.  At this point, we are still
> hoping to approve conditionally the last of the seven original
> constituencies, and allow the process of enlarging the board to move forward.  
> 
> That means that the Initial Board won't be considering your petition this
> time either, since we're still working on the first seven.
> 

Was this decided at the recent telephone conference?  Before? After? By
the Board, or the staff?  

> Let me say personally that I  am not totally comfortable  with this
> decision.  Given that the At-Large Membership is not yet constituted, I
> think it important that individuals' concerns have some representation
> within the DNSO.  
> 
> However, there are two other points worth noting. 
> 
> First is that the representativeness of the IDNO is still questionable; it
> faces many of the same challenges of outreach and breadth that the ICANN
> Initial Board faces in trying constitute its At-Large membership.  Creating
> the IDNO now may be a way of avoiding rather than solving this problem.  

Please don't misunderstand: I'm not expressing an opinion on the validity
or otherwise of the IDNO.  But I am curious as to why and especially how
it doesn't even get a hearing.

> Second, I am more concerned that the voices and interests of individuals be
> *represented* in the work of the DNSO, than with precisely how that happens.

As a sort-of veteran of Working Group A, and as an individual who sought,
seemingly in vain, to be officially included in it, I am not in the least
optimistic about this at this moment...

> Although the process is certainly messy, the concerns of individuals and
> individuals' rights are now being heard within the DNSO working groups -
> although perhaps not as effectively as they should be.  Making sure that
> that process works is where I think we should be focusing our attention
> right now. 
> 

In order to decide if "the process works" it would be most helpful to have
a fuller understanding of the "process" that produced this outcome.

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
 -->   It's hot and humid here.   <--

Re: [IFWP] Voter authentication

[Michael Froomkin - U.Miami School of Law]

Kent Crispin suggests that (1) he doesn't know/trust the groups I am
likely to know/trust; (2) many fourth and fifth parties have trust metrics
that have no overlap with either of us, and implies (3) that only a group
with total or at least enormously wide pre-existing trust can be a TTP in
this context.

I agree with (1) and (2).  I am more dubious about (3).  But let's suppose
trust can't be earned, and strangers cannot learn about institutions new
to them and then reasonably decide to trust them (how *did* I ever come to
join the ACM?). Even so, there are many groups that have international
trust, although of course there will never be any group that everyone in
the world trusts.

There are transnational professional associations, internationally known
universities (I bet Oslo would be trusted by many), foundations, and more.

Another type of candidate is -- brace yourself -- international law firms.

This is not all that hard problem to solve if and when it becomes
essential.   

Red Herring Alert!

{For non-native english speakers, a "red herring" is defined as "[from the
practice of drawing a red herring across a trail to confuse hunting dogs]
: something that distracts attention from the real issue" }

PS I will be leaving for holiday later this week, so I may be rather quiet
for a time.

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
-->   It's hot here.   <-- 

Re: [IFWP] Voter authentication

[Michael Froomkin - U.Miami School of Law]

To make a long story short:

1) I did indeed understand you to be worried about something other than
what you describe below.

2) If one were to decide to be worried about the problem you describe
below, the simplest solution, as you note, is to have the code running on
the trusted third party's machine, which again is really far from
difficult in today's world given the small number (<10K) of participants,
but could become a system load issue as the number grew and the
prevalance of machines.

3) In the very short term, unless there's some reason to think the people
involved in this project are more likely to be involved in fraud than
anyone else, it still strikes me as something that can wait until later.

4) I can't see any particular reason to think the risks of fraud on the
part of the volunteer vote-taker are more likely here than several other
places in these proceedings.  Which of course is the real issue.  If after
the fact someone thinks there is fraud, let them say so.

5) That said, it seems reasonable to put down a work item for some time
next year about having vote-takers who have no interest in the outcome --
and make sure that the principle applies equally to each constituency.
Plenty of higher-priority issues right now.
 
None of the above should be read as a substantive comment on the merits of
any constituency, or even the idea of constituencies, because it isn't.


On Sun, 18 Jul 1999, Kent Crispin wrote:

> On Sun, Jul 18, 1999 at 02:23:50PM -0400, Michael Froomkin - U.Miami School of Law 
>wrote:
> > Now, crypto happens to be something I know a little
> > about ( http://www.law.miami.edu/~froomkin/#crypto )
> 
> Very impressive.  However, crypto and network security are two very 
> different, though related subjects, and expertise in one does not 
> translate into expertise in another.  Security makes use of crypto, 

Agreed.

> but it is a very practically orientd use, not an academic one.
> 
> In any case, thank you for the opportunity to be gracious.  I will
> try not to blow it :-)
> 
> > On Sun, 18 Jul 1999, Kent Crispin wrote:
> >  
> > > Peer review of the code doesn't do the job at all, unfortunately. 
> > > How do you know that the reviewed code is in fact the code being
> > 
> > I agree that in a perfect world the system should be reistant to this.  
> > As an interim issue, it seems fairly low on the list of priorities.  Are
> > you seriously suggesting that there is a real risk of this fraud?  
> 
> Yes.  The problem is that it is *very* easy to do, and it can be done
> at any time, and in many circumstances, as I describe below, it can
> be done little fear of detection or punishment.
> 
> > In any case, proving that the code offered to the referee is the same as
> > the running code is trivially easy: you compile it, and hash the two
> > programs, and bit-compare them, or compare hashes.  (Of course you have to
> > use the exact same compiler and OS).  Ditigally sign every step for
> > long-run ease of comparison.
> 
> I must not have been clear -- apparently you completely misunderstand
> the problem.  There is no necessary relationship between a particular
> executable file on disk, and a program running in a computers memory,
> period.  
> 

Yes, I thought you were worrying about a different issue.

> More concretely: The auditors come, examine the code, certify it, and
> leave.  A *different* program starts up the minute they walk out
> the door, a program derived from the certified one, and that as far
> as the external network connection to the rest of the world behaves
> identically.  But it actually does a whole lot of other stuff, in
> addition.  When the auditors come back, they find the same certified
> code sitting on Joops disk, unmodified.  But unless they are logged
> on locally, and monitoring in real time, they can't verify that the
> program that is running, and providing service to the outside world,
> is the one they certified.
> 
> Furthermore, the trojaned version will externally act identically to 
> the certified one, so no one, an auditor or a normal voter, could 
> ever tell the difference externally.
> 
> In fact, even if you *are* sitting there, monitoring in real time,
> you can't really be sure.  It would be perfectly possible to have a
> trojaned shell that ran "election_code_subverted" whenever you
> specified "election_code_verified" on the command line, for example. 
> 
> This may seem far fetched to the inexperienced, but this kind of
> thing REALLY DOES HAPPEN, ALL THE TIME, IN THE REAL WORLD.  There are
> nicely packaged hacker toolkits, commonly available, that replace the
> system utilities that would normally reveal their presense, a

Re: [IFWP] Voter authentication

[Michael Froomkin - U.Miami School of Law]

Now, crypto happens to be something I know a little
about ( http://www.law.miami.edu/~froomkin/#crypto )

On Sun, 18 Jul 1999, Kent Crispin wrote:
 
> Peer review of the code doesn't do the job at all, unfortunately. 
> How do you know that the reviewed code is in fact the code being

I agree that in a perfect world the system should be reistant to this.  
As an interim issue, it seems fairly low on the list of priorities.  Are
you seriously suggesting that there is a real risk of this fraud?  

In any case, proving that the code offered to the referee is the same as
the running code is trivially easy: you compile it, and hash the two
programs, and bit-compare them, or compare hashes.  (Of course you have to
use the exact same compiler and OS).  Ditigally sign every step for
long-run ease of comparison.

> used? How do you know that Joop doesn't go in and manually change the
> logs and the results?  Or an employee of his?
> 

This is also trivally easy to prevent: escrow copy of the ballots as they
come in (hold for a period of time, then destroy).

> A review of the system could build *some* confidence that a hacker
> couldn't break in and change things.  That is actually pretty far 
> down on my list of concerns, though.
> 
> The basic problem is this:  barring complex and totally unrealistic 
> cryptographic protocols, there is no way to do a secret ballot 
> election without a Trusted Third Party.  How do you find a TTP for
> the highly contentious international arena we are playing in?  

Easy.  Real easy.  Ethan Katsh, or Phil Agre, or some large law or
accounting firm that holds it pro bono.  So long as all they do is hold
the data, pending challenges, it won't cost them much.  

Or, every day hash the file of all ballots, and digitally sign and publish
the hashes.   Protects agains all frauds other than those on a rolling,
real-time basis.  Protects against subsequent log alteration, doesn't
protect against ballot-stuffing however (but then that's supposed to a
function of the underlying system, not the
protect-against-the-election-officer system).

> 
> Ideally the TTP should *actually* be trusted, and neutral to all
> concerned, but this is very tricky.  There was, for example, some
> discussion of the American Arbitration Association managing the
> election, and we were assured that the AAA is highly respected etc. 
> But the fact remains that the AAA is an unknown to most of the human
> race, and hence, on the face of it, not trusted.  In some circles,
> the word "American" automatically makes it suspect. 
> 

We can, however, settle for actually fair, and let them build the trust.
I bet we can find someone or a body with a reputation capital on a par
with, say, Esther Dyson (an American!).  Again, not a deity, but we are
all fallen are we not?

> To summarize a potentially lengthy argument, international secret
> ballots over the Internet are, IMO, quite problematic. 
> 

Do, make it actually fair, answer reasonable critics, and that ought to be
enough.

> [An obvious counter-example is the share-holder elections that are
> being held via email these days.  However, there are substantive
> differences: shareholder elections involve a very large voting
> population, the issues are not important to most shareholders, and
> the large shareholders who care and are decisive votes, probably
> don't use the Internet for voting.]
> 

This is a ridiculous statement.  The issues are important, lots of money
changes hands, and if anything goes wrong, esp. fraud, the people running
it can go to jail.  So there's a very powerful incentive to make it not
just right, but provably right.  So this is a far more powerful example
that you admit.

A better statement would have been, that most of these elections use some
sort of paper (or at least external e.g. via broker) validation of the
voter, since elaborate systems exist to show who can sell the share,
piggybacking voting on it is less hard than a system where members don't
have to buy in.

> However, if you drop the secret ballot requirement, and go to the
> Internet equivalent of open roll call voting, such as is used in
> Congress or other deliberative bodies (and that people demand of
> ICANN), these problems are greatly reduced, and some are effectively
> eliminated. 
> 

True, but secret balloting problems while quite real are not as enormous
as you make it sound.

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
-->   It's hot here.   <-- 

Re: [IFWP] Why fail on purpose?

[Michael Froomkin - U.Miami School of Law]

Joe Sims wrote:

> Diane, and I hope you continue; it is helpful.  One point I should make:  a
> very significant hurdle to any election process is the lack of money to run
> it.  It might well be a sensible strategy, especially at this stage of its

As a late-comer to this debate ... could I have some orders of magnitude
please?

What kind of expenses are we talking about?  How does it compare to e.g.
the legal budget, the PR budget?  What fee per existing DN would cover it?
Etc


-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
-->   It's hot here.   <-- 

[IFWP] Why the WIPO Report is Wrong about Famous Marks (II-procedure) (fwd)

[Michael Froomkin - U.Miami School of Law]

Here is the text of a second message I attempted to post to
[EMAIL PROTECTED] .  I have posted it to the GA list, but in
deference to their no-cross-posts policy I am sending it separately to
IFWP & Domain-Policy. 

-- Forwarded message --
Date: Wed, 14 Jul 1999 14:18:27 -0400 (EDT)
From: Michael Froomkin - U.Miami School of Law <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
Subject: Why the WIPO Report is Wrong about Famous Marks (II-procedure)

[this is a quote from paras. 108-116 & 145 of my wipo commentary.  You can
find it at http://www.law.miami.edu/~amf/commentary.htm#_1_25 ]

Problem: Vague & Prejudicial Criteria. 

The fear that 'discipline and rigor' would be short-lived at best is
strengthened not only by WIPO's inability to make an estimate of the total
number of marks likely to qualify, but also by the vague and in one case
prejudicial criteria that WIPO proposes be used to rule on applications
for global famousness. To begin with, WIPO offers the six vague and
manipulable considerations for determining if a mark is famous or
well-known issued by WIPO Standing Committee on Trademarks, Industrial
Designs and Geographical Indications and set out in Para. 282 of the Final
Report.

WIPO then added a seventh "non-exhaustive" criterion not approved by the
committee: "Evidence of the mark being the subject of attempts by
non-authorized third parties to register the same or confusingly similar
names as domain names." Final Report, Paragraph. 283. No justification was
offered for this suggestion in the Interim Report other than it would
serve "to accommodate the specificities of the protection of famous and
well-known marks in relation to domain names" and, again, no further
justification for this seventh factor is offered in the Final Report. Why
precisely a mark should be more likely to be considered globally famous
because it happens to attract the attention of a single enthusiastic
domain name speculator, numerous parody sites, or nettlesome critics, is
unclear. Indeed, if a firm is attracting the attention of many critics who
register names similar to it as a form of protest, this seems to be the
weakest case for special protection. Indeed, as WIPO argues ADR is needed
because cybersquatting affects so many trademark holders, making being the
subject of cybersquatting an indication of global famousness seems
especially odd.

Furthermore, the experience of the United States with the federal
Anti-Dilution Act suggests that when faced with a blameless trademark
holder, a predatory domain name registrant, and a set of rules that allows
the decision maker to do equity, even federal judges cannot resist
declaring that trademarks one never heard of are famous. Adding the
seventh criterion ensures that the decks will be stacked before the
special tribunals as well, with predictable results.

Problem: Inappropriate Additional Remedies and Benefits-"Evidentiary
Presumption". 

WIPO also proposes that the owners of certified globally famous trademarks
benefit from an "evidentiary presumption". The "evidentiary presumption"
is in fact a shifting of the burden of proof. The mechanism is not
explained as clearly as one would like, but it appears that after having a
mark certified as globally famous, a mark-holder would begin an ADR
proceeding against a registrant in the ordinary manner. Instead of having
to allege and carry the burden of proof that the registrant had no right
to use the domain name, and the registrant was acting in bad faith, the
extra-famous mark holder would only have to persuade the arbitrators that
the domain is "misleading similar" to his mark and that it is being used
in a manner which damages his interests. Upon that lesser showing (and
apparently without the benefit of knowing how the arbitrators have ruled
on the complainant's suggestion that the burden of proof be reversed), the
registrant will then have the burden of proving "justification" for her
use of the domain name. Final Report, Paragraph 289.

There are four problems with this idea. First, the term "misleadingly
similar" is vague and likely to be interpreted in an over-broad manner.
Second, the suggestion that any use of a domain name that might "damage
the interests of the owner of the mark" sweeps far too broad, and will
invite harassment of many legitimate domain name registrants. Third,
reversing the burden of proof-requiring someone to prove their good
faith-is inherently unfair. Fourth, the procedure proposed for the ADRs in
Annex V of the Final Report is designed in a manner that fails to ensure
that the respondent will given sufficient notice as to the case which he
has to answer.

What is "misleadingly similar"? WIPO's Final Report does not define the
term "misleading similar". While one could profitably attach some sort of
definition t

[IFWP] Why the WIPO report is wrong about famous marks (I-Substance) (fwd)

[Michael Froomkin - U.Miami School of Law]

Here is the text of a message I attempted to post to
[EMAIL PROTECTED] .  I have posted it to the GA list, but in
deference to their no-cross-posts policy I am sending it separately to
IFWP & Domain-Policy.   Personally I find cross-posts easier to filter,
but go figure.

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
-->   It's hot here.   <-- 

-- Forwarded message --
Date: Wed, 14 Jul 1999 14:12:00 -0400 (EDT)
From: Michael Froomkin - U.Miami School of Law <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
Subject: Why the WIPO report is wrong about famous marks (I-Substance)

As explained in my wipo commentary,
http://www.law.miami.edu/~amf/commentary.htm, there are several different
types of problems with the WIPO proposal on famous marks. This message
concentrates on substantive issues.  The next message will focus on
procedural issues.

[the following is a quote from paras 91-106 of my commentary]

WIPO proposes that a centralized tribunal be impaneled that would rule on
ex parte applications by trademark owners that their mark was sufficiently
famous to be declared globally famous. This entire project described in
Chapter Four of the Final Report is at best premature. While many nations
have, consistent with their treaty obligations and national law, developed
standards for identifying nationally famous and/or sectorally well-known
marks there is no consensus procedure for identifying globally famous or
globally well-known marks. Furthermore, any mark which is globally famous
or well-known will also be nationally famous or well-known in most
nations. As such it already benefits from existing, substantial,
protections under national law and is therefore already quite well
protected, by the courts-and by the WIPO-ADR procedures when they follow
national law.

World-wide there probably are already at least tens of thousands of
identified nationally or regionally famous and well-known marks. As the
procedures for identifying these marks become more routinized and
widespread there are potentially hundreds of thousands, or even millions,
on a world-wide basis. WIPO does not (as indeed it should not) propose to
give special gTLD protection to each of the many nationally famous and
well-known marks, but rather to create a new category of globally famous
and well-known marks. However, it appears that no one-WIPO included-has
any idea how many marks this would be. In the Interim Report WIPO
suggested that only "a small number of names is involved...it is likely
that famous and well-known marks that may qualify ... number in the
hundreds, rather than the thousands." RFC 3, para. 216. Interestingly, no
estimate is provided in the Final Report.

The job of trying to find appropriate and definite criteria is a thankless
one, as the inability of the Committee to come up with something better
demonstrates. WIPO rightly rejected mechanistic criteria such as the
number of countries in which a mark is registered, as these too are
manipulable, and they also fail to measure whether a mark has the global
fame of exceedingly common names such as "Coca-cola." Unfortunately,
rather than recognize that the task is perhaps impossible, but certainly
not yet possible, WIPO pressed on.

There are several conceptual problems with WIPO's proposal:

1.  The "exclusion" protection for certified famous marks
provides marks owners with rights not currently found in law, notably the
right to block non-infringing uses of the name they have trademarked;

2.  The criteria WIPO proposes be used for identifying which
marks are sufficiently famous to enjoy enhanced protection are vague, and
in one appears to require evidence whose prejudicial effect will outweigh
any probative value (as WIPO argues ADR is needed because cybersquatting
affects many trademark holders, making being the subject of cybersquatting
an indication of global famousness seems especially odd.);

3.  No one has any idea how many marks will qualify. Not only
is there no upper limit, WIPO has now retreated from its low estimate in
the Interim Report;

4.  The proposed "evidentiary presumption" applies far too
broadly, and is in any case an inappropriate remedy.

Problem: Provides rights not found at law. 

The protections proposed for famous marks exceed those currently available
at law, thus violating the fundamental aim stated in the Final Report that
"the goal of this WIPO Process is not to create new rights of intellectual
property, nor to accord greater protection to intellectual property in
cyberspace than that which exists elsewhere." Final Report, paragraph 34.
As WIPO itself notes, "the provisions of the Paris Conventions and the
TRIPS Ag

Re: [IFWP] Javier, what are you doing?

[Michael Froomkin - U.Miami School of Law]

[someone may need to post this to [EMAIL PROTECTED] for me, since I rather
doubt I'm a member]

I agree that list management has suddenly become a crisis. 

There are too many lists.  This makes informing oneself hard.  It makes
discussion fractured. It reduces the meaningfulness of consensus.  

Not to mention that the lists are hard to subscribe to.  (I am utterly
unclear if I am on any WG-A lists, or even an official member of WGA at
this point.)  If you look at the archives of some lists, it seems as
though all the postings are by one or two people.

That said, I wonder who will claim there is not a rough consensus on the
issue of the need for (some sort of) new gTLDs

On Wed, 14 Jul 1999, Mark C. Langston wrote:

> Javier, I'm confused.
> 
>   First, you complain about people crossposting to wg-c as well as wg-c-1.
>   Then, you personally post one of these crossposts to wg-c-1, even
> though you've claimed that everyone there would have already received it
> not once, but twice.
> ( http://www.dnso.org/wgroups/wg-c-1/Archives/msg00050.html ).
> 
>   For the past day at least, conversations have been taking place regarding
> the mechanism for determining consensus, without a decision on the 
> mechanism. 
>   Last night, you make a call for consensus on one of the questions before
> wg-c-1 ( http://www.dnso.org/wgroups/wg-c-1/Archives/msg00058.html ).
> Before, I note, a co-chair for the WG exists, when the model currently
> under consideration for determining consensus involves the chairs and
> a Reporter (a position which also has not yet been filled).
> 
>   Yesterday afternoon, I request to be added to wg-c-1, and a few
> hours later, I request that I be added to wg-c-2.
>   Last night, you add me only to wg-c-2, with no explanation.
> 
>   I'm bothered enough that the pDNC has appointed you, a signatory of the
> gTLD-MoU, a member of the BoT of ISOC, a member of the PAB and POC, as
> the chair of the group that will decide questions regarding the existence
> and management of gTLDs.  It troubles me further that you also control 
> the subscription processes surrounding this WG, which you've broken into
> 4 seperate lists.
> 
> What, exactly, is going on here?
> 

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
-->   It's hot here.   <-- 

[IFWP] Mailing lists

[Michael Froomkin - U.Miami School of Law]

I have found the lists page at dnso.org

Am I allowed to post to any of the working group mailing lists other than
the public list? Am I a member of any of any subgroups?  Am I a
member of these lists? If not, why not?
 
I have also received private e-mail from various people who allege they
were told they could not join WG A.  Is this correct that people were
turned away? If so, can they now be added?

I note further that there is a "no-cross-posts" policy.  How then am I to
bring matters to the attention of the whole group when part of my
complaint is that certain matters fall outside of any group's
jurisdiction?

--
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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Re: [IFWP] TLD Statistics

[Michael Froomkin - U.Miami School of Law]

publish this.
try proceedings of acm?

On Thu, 8 Jul 1999, Craig Simon wrote:

> Hi folks, 
> 
> Here's a link that may be of interest to participants in the domain name
> debates.
> 
> http://www.flywheel.com/ircw/trends.html
> 
> The bottom line is that, since I began collecting this data in April
> last year, registrations within the InterNIC's "Big 3" gTLDs have
> increased 261 percent while registrations in ISO ccTLDs have increased
> 188 percent. There are some anomalies in the source data which undermine
> faith in the precision of these numbers and the utility of using them to
> perform analysis on a month-to-month basis, but I accept them as
> reasonably credible with regard to long-term trends. 
> 
> Consequently, it is safe to argue that NSI has significantly improved
> its already formidable market position against competing registries.
> 
> The highlight of the page is a chart and a table with supporting data.
> Text from the page follows.
> 
> (Sorry if the graph is hard to view for people running less than
> 1024x768. There aren't enough hours in this day to figure out the
> resolution arcana of Excel's html converter.)
> ...
> 
> Since April 1998 data was collected from www.domainstats.com, a site
> maintained by Netnames, International. To this extent this information
> is reliable, it shows that the growth in registrations in under .com,
> .net, and .org now solidly outpaces growth in registrations within the
> ISO ccTLDs. An earlier series of data from 1997 reported by Mark
> Henderson-Thynne of NetNames showed that ccTLD registrations slightly
> outpaced growth in the InterNIC's commodity TLDs that year. 
> 
> This substantial change in growth trends demonstrates that NSI is
> consolidating a robust advantage in the domain name market.
> 
> Please note:
> 
> There are some glaring unexplained anomalies in Netnames' reports which
> may invalidate this data for fine, short-term analysis. 
> 
> None of my comments regarding anomalies in the source data should be
> taken as criticism of NetNames. The numbers were made available to the
> public through the DomainStats site, and I think they reflect a fair
> effort to consolidate a complex data set from a diverse array of
> sources. One can always hope for more accuracy (and independently
> verifiable substantiation of that accuracy), but I am grateful to have
> this.
> 
> The drop in InterNIC registrations illustrated at the end of 1998 is
> unlikely to have occurred as shown, and is probably due to a change in
> Netnames' collection and reporting procedures. 
> 
> Results reported for the InterNIC TLDs at the DomainStats site was
> clearly incorrect in April 1999. To smooth over that error I
> interpolated that month's series for InterNIC registrations by summing
> the prior and following month's totals and inserting the rounded
> average. Also, close inspection of the data for certain countries,
> particularly Brazil (.br) and South Africa (.az), raises questions about
> the up-to-date accuracy of NetNames' reporting, as do occasionally
> static reports for other ccTLDs like Germany (.de) and Denmark (.dk). 
> 
> Please also note that both the ccTLD and InterNIC data for February 1999
> is interpolated because I didn't capture the source report from NetNames
> for that month. And not all data was captured consistently on the first
> of the month, either because the DomainStats site was not available, or
> because of my forgetfulness.
> 
> Errors and inconsistencies in checksums general reflect small
> inconsistencies in sums published at the DomainStats site.
> 
> With the exception of the first dates along the X axis data were
> collected on or about the first of the month for successive months.
> Those first two dates were considerably farther apart, and therefore the
> trend lines for those dates should not be as steep as is shown.
> 
> 
>   Despite these caveats, the information is useful and interesting. 
> 
> 1) Even if Netnames has substantially underreported ccTLD registrations,
> it is abundantly clear that the growth of InterNIC registrations
> outpaces ccTLD registrations. I estimate the shortfall is approximately
> 500,000 ccTLD registrations. This is currently less than a month's worth
> of business for NSI, but far exceeds the size of the largest ccTLD.
> 
> 2) Many observers expected that pent-up demand for new gTLDs would go to
> highly advertised leased ccTLDs like Niue (.nu). That zone did grow by
> 640 percent over the study period, but accounts for a small number of
> registrations–just over 40,000–and less than 1 percent of ccTLD
> registrations. Its impact on non-InterNIC growth is insignificant.
> 
> 
> 
> 
> That's it. I hope the chart is readable. Constructive criticism is of
> course welcome.
> 
> Craig Simon
> More at http://www.flywheel.com/ircw/overview.html
> 
> 

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 US

Re: [IFWP] Re: Thoughts on ICANN

[Michael Froomkin - U.Miami School of Law]

Craig McTaggart asks whether it's unfair for people to accuse ICANN of
lacking public virtues when this is a feature rather than a bug in a
private body.

The danger, it seems to me, is having the worst of both worlds.  Public
and private have different accountability modes.  To oversimplify a lot,
one is ballots,the other is market.  ICANN has little to no of either.
This doesn't prove that ICANN will do anything bad, just as accountability
doesn't always prevent organizations from doing bad things.

But it's a worry.

Organizations have a tendency to expand.  It's almost a bureaucratic
imperative.  A body with no check on its access to funds is particularly
vulnerable to this tendency.

It's a worry.

For me the relevant continuum is no public-private.  That's almost as
unhelpful as ICANN v. NSI.  The relevant dichotomies are accountable/free
and clearly-bounded-limited-task/generalizable-mandate-subject-to-
revision.

It's a worry.

Then there's the issue of who chooses the deciders

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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Re: [IFWP] Re: Anti-cybersquatting Consumer Protection Act

[Michael Froomkin - U.Miami School of Law]

On Wed, 30 Jun 1999, William X. Walsh wrote:

> If the sole purpose of me buying property is to deny you use of that
> desirable property, am I guilty of a crime?

Not a crime, but a tort (in many states).  Tortious interference with
prospective business advantage.  Or, the venerable "prima facie tort"
which "posits a general theory of intentional tort under which the
intentional infliction of injury without justification is actionable."  
See generally 79 Ky. L.J. 519 Kentucky Law Journal 1990/1991 THE MODERN
PRIMA FACIE TORT DOCTRINE Kenneth J. Vandevelde

-- 
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U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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[IFWP] Re: Speculation [Was Re: Anti-cybersquatting Consumer ProtectionAct]

[Michael Froomkin - U.Miami School of Law]

On Wed, 30 Jun 1999, William X. Walsh wrote (inter alia):

> Professor, you have it wrong here.  The status quo is the legal
> system.

> NSI's policy needs to be scrapped to let the legal systems do the job
> they exist for.

If you are a DN holder in .com, like it or not the status quo is the NSI
policy.  The NSI policy is not illegal.  Just bad.  Yes, it is worse than
no policy (let the legal system do all the work).  But that doesn't make
it illegal.

The legal system makes the NSI contract legal, binding, and effective.  
So which part of the legal "system" are we talking about: just the IP
part?  or the whole "system"?

The WIPO ADR policy (without special rules for famous marks) is a small
number of critical fixes away from being better than the NSI policy.  For
everybody except speculators and cybersquatters.  Without the fixes, it's
a different story: it's very bad for almost everyone.  Even trademark
holders should be worried about the 10-day email rule.  Everyone should
worry about the free speech issue, the ok-to-sell-as-part-of-settlement
issue, and even the need for additional clarity via examples.

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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Re: [IFWP] quasi-government role of ICANN illegal under U.S. law

[Michael Froomkin - U.Miami School of Law]

On Mon, 28 Jun 1999, Ronda Hauben wrote:

> ICANN is illegal and the U.S. government's effort to create
> ICANN is unconstitutional.
> 
> Is the Government Corporate Control Act law online? If so where?

All US statutes are online in many places.   I like the search form at
http://www.findlaw.com/casecode/code.html
31 usc 9102 is at 
http://law2.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t29t32+2229+0++31%20usc%209102

> I will take a look at your article when I get the chance, but have
> you looked at the opinion issued on the illegality of the FCC 
> schools and libraries corporation?
> 

I had not.  I thank you for it.  Its dicta suggests I was a little too
pessimistic and literal in my reading of the GCCA.  On the other hand, the
critical fact difference between that case and this one is that the RCCA
admitted it had been created by the FCC.  I don't think ICANN is going to
admit it was formed by the DOC, although it might be interesting to ask
that question under oath

Furthermore, the tight relationship between the RCCA was reflected in many
of the foundational documents.  As the GAO put it:

"The certificate of incorporation of the Rural Health Care Corporation
specifies that the purpose of the corporation ". . . is defined in the
Federal Communications Commission's . . . rules at 47 C.F.R. § 69.618, as
it exists today and as it may be amended." The certificate of
incorporation further states that the corporation may engage in other
activities "so long as it is consistent with FCC Orders and Rules." 6 In
its letter to our Office of January 5, the Commission stated that it did
not envision these entities "operating outside the scope of the activities
set forth in the Commission's orders." Commission letter at 9. Under
Commission rules the boards of directors of these entities are comprised
of members either selected or approved by the Chairman of the Commission.
The size and composition of the boards is set by the Commission, as is the
term of office. The Commission Chairman must approve the removal of any
director as well as a resolution to dissolve the Corporation. The Chief
Executive Officer (CEO) of these corporations must be approved by the
Chairman of the Commission. Authority to enter into contracts must be in
compliance with Commission rules. All of these requirements have been
included in the corporations' by-laws. Authority to Establish the
Corporations."

While the same may not have been true of the charter of the schools and
libraries corp, it appears that the FCC picked members of the board of
that body also.

ICANN would claim (with some justice) that it is considerably more
independent de jure, and also de facto.  Unless the articles of
incorporation say 'we exist to do what the DOC wants' (which is unlikely),
the only issue will be what people thought they were doing
And we see the outlines of that in 
http://com-notes.house.gov/cchear/hearings106.nsf/b2cc6be46b2b2d2285256720007e4972/89227d363b2c70c58525679800537265/$FILE/doc.pdf

Unless you are prepared to say people are lying -- and I have seen no
evidence of that -- it still doesn't look like you would be able to
persuade a court.  At least, it would be very hard, since the essence
of the claim would be that there was a lot of nudge and wink going on.
Even if it were true, and I am not saying it is, it would be very hard to
prove without a whistle-blower.

That said, it would still be interesting to know who selected the current
ICANN Board

> >You will note there that most of the corporations the GCCA aimed to squash
> >were formed by US government employees and owned in whole or part by the
> >USG. ICANN is different: no USG employees formed it, and the USG owns none
> 
> Postel, whose name all was being done in was  U.S. government contractor
> when ICANN was incorporated and essentially it was in his name
> that the bylaws etc were supposedly all done.

Just being a contractor clearly doesn't bring you within the GCCA.  It
takes more.  Otherwise no defense contractor would ever be able to create
a subsidiary.

> 
> And the Schools and Libraries Corporation that the FCC tried
> to create wasn't the kind of example you give.
> 
> In fact it is the opposite. The fact that the U.S. government is
> creating a so called private corporation to do government
> activity means that the people involved in ICANN become government
> functionaries, as they are acting under the color of the law
> guiding what U.S. government entities have to do.
>  
> You are turning the law on its head. You are claiming that
> if someone isn't a U.S. government employee, but the U.S. government
> creates a corporation for him to do public business as a private
> entity than that is ok.

No, I think if that is what happened it is a lousy precedent and may be a
violation of the separation of powers and the Carter Coal doctrine.  But
what I think and what I think I can get a court to think are not always
the same.  That said, the GAO report yo

Re: [IFWP] ICANN Commentary Mike Roberts - ICANN is set up by U.S.govt

[Michael Froomkin - U.Miami School of Law]

I once wrote an article that discusses the government corporation control
act at some length.  You can read it at 
http://www.law.miami.edu/~froomkin/articles/reinvent.htm

FWIW I think ICANN does not violate the letter of the GCCA, although it
may well violate the spirit of it.

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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Re: Fwd: [IFWP] Press Communiqué

[Michael Froomkin - U.Miami School of Law]

One enormous danger of this expand-WIPO-arbitration strategy endorsed in
the ICANN Press communique is that there will not be judicial review in
the US (and a few other countries), while there will be in much of the
rest of the world. The result will be to put US registrants (and others
similarly affected) at a vast disadvantage to the rest of the world.

I explained this at some length in my critique of RFC 3.  The problem
still exists with the scaled-down final report, but I think it can be
swallowed in the interest of compromise since the cases are presumably
going to be about real abuse and the potential for injustice is thus much
reduced.  Go to cases where reasonable people can disagree, and it's
unacceptably unfair to tell people they have to waive their right to go to
court when others do not. I have yet to see WIPO, ICANN, or anyone else
address this issue (and if you are thinking of making arbitration
mandatory and binding, which solves the equity problem, try selling that
to either the trademark people or the people who think freedom of
expression should not be entrusted to arbitrators). To endorse the idea of
wider arbitration, even in principle (if that is the term for doing it in
a press release that undercuts the supposedly formal resolution), without
addressing this fundamental issue is very troubling.

I'd also like help understanding how a generic policy on commercial
disputes falls under the jurisdiction of a body that (I thought) was
limited to technical issues regarding names and numbers.  In addressing
this issue, I'd especially like help in understanding how this "technical"
jurisdiction will not then be extended to the content of web pages, e.g.
copyright or offensive content, especially since in the usual dispute
regarding a trademark and a domain name, the law makes the content of the
web pages at that DN an essential part of the issue: non-cybersquatting
trademark cases usually turn on whether the use of the term causes
consumer confusion.   This is not an attempt to use some Internet scare
tactic.  It is a sincere and honest question to which I do not currently
see an answer.

As a lawyer I see all the signs of a slippery slope here.  And please
don't tell me that I should put my faith in the Board.  I retain a great
personal respect for the Board members I know personally.  But this is not
about faith in individuals, this is about creating an institution and its
legal powers; we always have to assume the worst when doing any legal
drafting, and that's doubly true when designing institutions that may last
generations.  

Critique of WIPO RFC 3:  
http://personal.law.miami.edu/~amf/critique.htm

Commentary on WIPO Final Report:
http://personal.law.miami.edu/~amf/commentary.htm

On Mon, 7 Jun 1999, Esther Dyson wrote:

> My server has been rejecting mail lately (a Freudian slip perhaps!), so I
> missed this till now.  
> 
> Basically,  the sense of the board is that this policy, whatever it
> eventually involves, should probably address all (nonpolitical)  disputes
> over names, not just the "abusive" registrations that WIPO focuses on.
> ("all commercial disputes linked" to domain name registrations may be
> overbroad, as opposed to commercial disputes over names themselves.)
> 
> Esther Dyson
> 
> At 01:38 AM 07/06/99, Bret A. Fausett wrote:
> >Esther -- I'm confused about some of the statements in the ICANN Press
> Communique and what weight/accuracy those statements have. Could you clarify
> when you have a moment. The following was posted on ifwp.
> >
> >Thanks,
> >
> >Bret
> >
> > Begin Forwarded Message 
> >Date:06/04  10:10 PM
> >Received:06/04  10:20 PM
> >From:Bret A. Fausett, [EMAIL PROTECTED]
> >Reply-To:IFWP, [EMAIL PROTECTED]
> >To:  IFWP, [EMAIL PROTECTED]
> >
> >I'm confused.
> >
> >I just re-read the ICANN Press Communiqué from Berlin. 
> >
> >In the press release (written by the PR firm, not ICANN) is this:
> >
> >  The Initial Board noted that a uniform dispute settlement 
> >  mechanism was a necessary element of a competitive 
> >  registrar system. The Initial Board noted that the 
> >  scope of this policy should be wider than the cases 
> >  of abusive registration with which the WIPO report 
> >  deals, and ultimately cover all commercial dispute 
> >  issues linked to Domain Name registrations. 
> >
> >That last sentence is not in the Board's resolutions. What does it mean?
> Does it indeed represent a Board sentiment? Was that sentiment unanimous?
> >
> >Can someone who was in Berlin (or better yet, an ICANN Board member) shed
> some light on this?
> >
> >Thanks.
> >
> >   -- Bret
> >
> >
> >- End Forwarded Message -
> >
> 
> 
> Esther Dyson  Always make new mistakes!
> chairman, EDventure Holdings
> interim chairman, Internet Corp. for Assigned Names & Numbers
> [EMAIL PROTECTED]
> 1 (212) 924-8800
> 1 (212) 924-0240 fax
> 104 Fifth Avenue (b

Re: [IFWP] feedback on NYT article

[Michael Froomkin - U.Miami School of Law]

Process issues aside, and assuming we can fix the (serious) glitches
(timetable, free expression protection), isn't this proposal better than
the NSI dispute policy.  (I mean just chapter 3, not chapter 4).

On Sat, 29 May 1999, Richard J. Sexton wrote:

> Have we fogotten that it was a consensus item that a unifom ADR is not desirable
> art the Geneva IFWP meeting?
> 
> Didd anybody else notice that nobody ever asked the question this time round
> "is a uniform ADR desirable" 
> 
> 
> At 10:32 AM 5/29/99 -0400, Esther Dyson wrote:
> >Jeri -
> >
> >In our conversation on Thursday, I said  to you that we had endorsed many of
> >the "principles" of the WIPO report, most notably uniform dispute
> >resolution, but not the specific recomemendations. 
> >
> > I  suggested that you consult the press release and resolutions for
> >details, which include  separate approaches to three separate
> >categories/sections of the report (and which you to some extent outline
> >later in the story). We did, as many public comments had advised us to,
> >refer the second two categories (as opposed to approaches we had de facto
> >already adopted in our registrar accreditation guidelines) to the DNSO. In
> >other words, though the second paragraph of the story and subsequent details
> >were better, the lede was seriously misleading.  What more can I say?  
> >
> >Unfortunately, these seemingly  subtle distinctions are important.  (For
> >everyone: The details are at
> >http://www.icann.org/berlin/berlin-resolutions.html and
> >http://www.icann.org/berlin/berlin-details.html.)
> >
> >
> >Esther
> >
> >   
> >   
> >
> >
> >  May 28, 1999
> >
> >
> >  Internet Board Backs Rules to Limit
> >  Cybersquatters
> >
> >  By JERI CLAUSING 
> >
> >   he board of the Internet's new oversight organization on Thursday
> >   endorsed a controversial set of recommendations for cracking
> >  down on so-called cybersquatters, who register trademarks and other
> >  popular words as Internet addresses. 
> >
> >  Esther Dyson, interim chairman of the organization, the Internet
> >  Corporation for Assigned Names and Numbers, emphasized that the
> >  board's endorsement merely affirmed the broader principles of the
> >  recommendations, which were issued last month by the World
> >  Intellectual Property Organization (WIPO), an arm of the United
> >  Nations. Many of the details, she said, would be open to amendment. 
> >
> >  The board deferred final adoption of the
> >  recommendations until they can be reviewed by
> >  one of ICANN's newly formed member groups.
> >  Absent from that group, however, is the
> >  constituency that critics say have the most to lose
> >  under the recommendations: individuals and
> >  non-commercial interests who have already
> >  registered Internet addresses and could have them
> >  taken away. 
> >
> >  Like everything surrounding the Clinton
> >  Administration's process for handing administration
> >  of the Internet to ICANN, the board's action was
> >  immediately criticized as contrary to its charge to
> >  be a "bottom's up" organization and follow the lead
> >  of its worldwide constituents. 
> >
> >  Brian O'Shaughnessy, a spokesman for Network Solutions Inc., which
> >  has held an exclusive government contract for registering names in the
> >  top-level domains of .com, .net and org since 1993, said after
> >Thursday's
> >  action that ICANN was envisioned "as a limited standard-setting body
> >  which is consensus based." But he said that when the board begins
> >  making such decisions, "It's top down instead of bottoms up." 
> >
> >  A. Michael Froomkin, a University of Miami law professor who advised
> >  WIPO on the recommendations and who has been critical of some of its
> >  major provisions, said he was pleased that the ICANN endorsement
> >  applied only to the broader dispute resolution principles. Three other
> >  chapters, including that recommending that ICANN establish a system
> >  for protecting not only trademarks but other famous words, was
> >referred
> >  to the membership committee without recommendation. 
> >
> >  Still, he questioned the need for the board to take any action yet. 
> >
> >  "Why are they endorsing things before they send them to the supporting
> >  organization for review? " he asked. 
> >
> >  The unanimous endorsement of the principles by ICANN's board came
> >  during an eight-hour closed board meeting in Berlin, where the board
> >  also finalized

Re: [IFWP] Re: feedback on NYT article

[Michael Froomkin - U.Miami School of Law]

Two points:

1) there's an enormous difference between endorsing the entire report
"in principle but not in detail" and taking no view of some very
controversial parts of it.  For those who object to the entire proposal
regarding famous marks on he principle of the thing, even an endorsement
"in principle" would be pretty upsetting.  It not being there matters.

2) I am uncertain what your remark about constituencies is supposed to
mean, but for the record I claim a constituency of one -- myself -- and am
more than content for my statements to stand or fall on the power or
idiocy of my ideas.  This is why I write them out in some detail. (c.f.
http://www.law.miami.edu/~amf ).

There are some very legitimate questions to be asked about who loses/wins
from delay.  Before we even address those, though, lawyers like me will
ask you if you think you are doing a short term thing or trying to build
for the long term.  If you are thinking long term then you need to worry
about getting process right, not just outcomes.  It seems to me that the
current ICANN resolution on WIPO gets the substance right enough (if not
quite like how I might have ideally wanted it).  I am not persuaded it
gets the process right, given the kerfuffle over the DNSOs, and more
importantly, the issue of whether this Board ought to be doing substance
or standing up for the principle that it's up to the first real Board to
to do that.  Of course, if you are focused on the short-term bottom line,
this is not going to be an appealing argument...

On Sat, 29 May 1999, Dave Crocker wrote:

> At 01:50 PM 5/29/99 -0400, Jeri Clausing wrote:
> >the three different areas. You said repeatedly that you had endorsed the 
> >report in principle. And you asked someone else in the room
> >several times what you had done.
> 
> Somehow, I always thought that "in principle" was quite different from "in 
> detail".
> 
> In the more subjective realm, I've come to view the term "in principle" as 
> being used to mean -- rather clearly, frankly -- that there are 
> reservations about the details.
> 
> An opening 'graph that says "...endorsed a controversial set of 
> recommendations for cracking..." does not make this distinction and sounds 
> vastly more definitive, formal  and final than the much-later text "The 
> board deferred final adoption of the recommendations until...".
> 
> Sure enough, the national pickup of this article got exactly the wrong 
> meaning from it, failing to distinguish principle from detail, and initial 
> support from formal passage.
> 
> But, then, the article does not point out the very limited consistency that 
> Froomkin has, or to explicitly make clear that delay is in the interest of 
> NSI.  But who gets quoted?
> 
> For that matter, where are the quotations of support in the article?
> 
> As always, it is far easier to write a story about controversy than about 
> compromise.
> 
> d/
> 
> =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
> Dave Crocker Tel: +1 408 246 8253
> Brandenburg Consulting   Fax: +1 408 273 6464
> 675 Spruce Drive 
> Sunnyvale, CA 94086 USA 
> 
> 

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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Re: [IFWP] Today's ICANN's Berlin Meeting (Wedesday)

[Michael Froomkin - U.Miami School of Law]

It would have seemed cooler if I'd had any sense it  was getting through
to the board.   

PS - does anyone know who belonged to the voice that made the
anti-academic remark? Was it Roberts or a Board member?
-- 
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U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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[IFWP] RE: [dnsproc-en] 4th WIPO Panel of Experts member signs ICANN petition

[Michael Froomkin - U.Miami School of Law]

What exactly is the "WIPO recommendations" that the Board is being asked
to adopt:  Is it the whole report?  Just the annexes?  If the latter, it
is hideously unfair, for the reasons set out in my commentary at
http://personal.law.miami.edu/~amf/commentary.htm . If the former, the
tensions between the report and the annexes will breed confusion.

In either case, the procedural timetable is very flawed:  If I represented
a trademark owner, I would be rather concerned about a plan that gave me
10 days to assemble my complete reply and defense to complaints from the
date an email was sent (not received!), and no effective appeals
whatsoever.  Does Ms. Cade accept that in the hands of an unscrupulous
party, the timetable creates a potential for ambush?

I should also note that there is an awful lot of new stuff in the final
report.  The definition of cybersquatting is all new -- and was never
discussed in any public forum, either on line or in the various hearings.
It would be *very* interesting to know if Ms. Cade had seen it before it
was published.  We Experts were instructed to keep it under wraps when we
were first shown a draft thus negating the possibility of open public
discussion.  

The Annexes were never even shown to the Experts.  (Had Ms. Cade seen them
prior to publication?)  This despite my specific written request to the
WIPO staff to see them before publication.

If this were a proceeding under the US Administrative Procedures Act
(which, of course, it was not), the final report would constitute the sort
of "swerve" that would require a new round of notice and comment.

In my opinion, there *is* sufficient time for that discussion between now
and August if it starts soon, but the institutional mechanisms for it do
not appear to be in place, and it is also unclear that this is an
appropriate decision for the Interim Board. A particularly good statement
of the issues appears in the comments of Prof. Jonathan Weinberg at
http://www.icann.org/comments-mail/comment-ip/msg00061.html

-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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Re: [IFWP] Re: A Commentary on WIPO's final report on domain names

[Michael Froomkin - U.Miami School of Law]

On Tue, 18 May 1999, Kerry  Miller wrote:

> I am pleased to see your comments here, but I have to object to 
> your final lines. The bracketed deadline suggests that you accept 
> the likelihood that ICANN will take action on this in Bonn, and that 
> therefore public review and comment must try to  fit that window  of 
> opportunity.
> 

That was not my intention.   I do think I retain the right to repost my
notice with a new deadline, later.  Meanwhile, I adhere to Phil Agre's
warnings about having things circulate forever.   I saw several comments
various places that attributed my RFC  3 critique to the Final Report.
Better to be cautious.

> I should say the priorities are just the opposite: ICANN should not 
> take action *until* such public review and comment have been 
> developed. If the public sees no pressing need for adoption of such 
> extra-legal quick fixes,  what mandate does ICANN have to do so? 
> 

IMHO adoption of the WIPO report is properly a matter for a duly elected
board, not an interim board.  But that is a different issue from the four
corners of the recommendations themselves.

[...]
> 
> Beyond that, what do you see as a plausible way out of the 'abusive
> registration'  corner? Would some sort of 'omsbudsman' panel 
> serve the purpose? The WIPO report may be a good faith effort, but 
> if all it amounts to is 'we'll know when we see one,'  it hardly 
> qualifies as intellectual property itself. 

I argued for requiring some sort of frequency as an element of every
allegation of abuse: I thought that part of being a cybersquatter was
doing it a lot.  This did not impress the WIPO staff, it appears.  

As a general matter I am not horrified by having to rely somewhat on the
good faith of truly neutral parties.  I don't think there are many things
in life where one can draw the perfect bright line rule in advance.   The
issue, though, is to give those neutrals about the right instructions, not
just "do what you will".  and a strong statement that free expression is a
value to protect should be one of those instructions.

It follows from the above that it is very important to have arbitral
institutions selected that will pick truly neutral deciders.  And who will
come from **a variety of backgrounds** ie not just trademark lawyers!


-- 
A. Michael Froomkin   |Professor of Law|   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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