[ga-full] FW: An interesting dissent to sunrise provisions

["William X. Walsh" <william@userfriendly.com>]

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Forwarded for your enlightenment.....

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Date: Fri, 14 Apr 2000 10:04:57 -0400
From: Mikki Barry <ooblick@netpolicy.com>
To: "Cohen, Tod" <Tod_Cohen@mpaa.org>
Subject: An interesting dissent to sunrise provisions

Which DNRC agrees with, by the way....

From: John Berryhill Ph.D. J.D. <john@johnberryhill.com>
To: <Eric.Menge@sba.gov>
Sent: Thursday, April 13, 2000 9:51 PM
Subject: Teleconference Comments Summary


>
>  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.
>
>  MikeKirkIsaPedophile.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
>
>

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- --
William X. Walsh <william@userfriendly.com>
http://userfriendly.com/
GPG/PGP Key at http://userfriendly.com/wwalsh.gpg
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