[ga] Re: [ncdnhc-discuss] Fwd: Concerning a restricted .org

[Jeff Williams <jwkckid1@ix.netcom.com>]

Vany and all,

Nilda Vany Martinez Grajales wrote:

> Hi Duncan, Chris and all:
>
> Thank you for bring this issue here.  And I think that is time to
> separate things.
>
> Duncan, I think you are confusing "Restriction"  with "Challenging
> Registrations".

  Not really Vany.  "Challenging Registrations" is in effect a form of
Restriction.  So let's not mix metaphors shall we?  >;)

>
>
> The Restriction part is about not allowing certain kind of entities to
> register in a TLD.

  Yes it is.  ANd as this applies to .ORG compared to the current
practice for .ORG today, consideration of restricting registrations
now would only lead to more legal trouble than necessary or
reasonable with those already with domain name registered
in the .ORG name space/gTLD.  In addition at this juncture
with respect to .ORG, going to a S,R model, would or could
be considered a restraint of trade and restriction of speech.

>
> For example, regardless which non-commercial organizations will register
> NIKE, for sure a
> commercial organization named NIKE won't be allowed to register inside
> .ORG, because the
> charter would prevent a commercial organization to register in .ORG.

  Yes, however NIKE may also have a non-commercial arm or subsidiary
of it's parent corp., the commercial NIKE.  This could be true, and is
in a number of other Corps. in the US and elsewhere...  Hence, to restrict
registrations in .ORG by the parent Corps. commercial activity disregarding
any of it's non-commercial identity would be inconsistent with both reality
and US law.

>
>
> The "DRP process" is about challenging registrations.  Entites will
> Challenge Registrations
> regardless if the TLD is Unesponsored Unrestricted or Unesponsored
> Restricted or Sponsored Restricted
> or Sponsonsored Unrestricted (the only category that according to ICANN
> doesn't exists).

  Yes this is true.  But if U,U or S,U it is much less likely that that such
challenges will be attempted in many if not most instances, and if such
a challenge is attempted the success rate is likely very low.

>  But if a good DRP
> process is achieved inside .ORG a decision with clear preference to the
> Non-Commercial organizations could be achieved.

Yes, but you get into the same old problem of splitting hairs between
non-commercial and non-profit.

>
>
> Now, stablished that Restriction doesn't means "Challenging
> Registrations", then we can go futher.
> One thing is the Charter, other thing is the kind of DRP used.  The
> relationship betweem them is that
> the Charter will stablish which kind of DRP will be used and how it will
> be applied (to all domain names regardless
> registration or only to registrations that will take place after
> divesture, to give clear advantage to Non-Commercial Organizations
> over Commercial ones or make it similar as UDRP?, to follow a fair
> process when the complaiant is amongst two Non-COmmercials?).

  This would require a revamping of the current ill conceived WIPO
UDRP to be reasonable successful.

>
>
> Taking your own example:  NIKE the shoes, NIKE the Nicaraguan
> Non-profit.  The a good DRP process for .ORG would dismiss
> inmediatly any complaint if iniciated by NIKE the sports shoes because
> it is a commercial.   A good DRP for
> .ORG would have clear advantages for NOn-COmmercial organizations and
> would give clear preference to NIKE the Nicaraguan NOn-Profit
> over such domain if the complaiant is NIKE the Nicaragua Non-Profit.
> This would be possible if .ORG is Sponsored Restricted, because in
> Sponsored Restricted you have the freedom to define the Charter and to
> also design your own DRP process.  With Sponsored Unrestricted
> there's no charter as such and if, such a category would exists in the
> future, probably the DRP process would be the UDRP we know.

  Why would S,U or even U,U have such a concern?  Why would
S,R have such and advantage presently?  How could such a new
DRP once divestiture of .ORG be assured to be significantly
different from the present UDRP?

>
>
> Now lets take another example you gave:  US Non-Profit IP Lawyers vs
> Zimbawan Human Rights Organization.
> A good DRP process would assure to both a fair process regardless their
> actual legal status, since in .ORG
> there should be no difference between non-commercial organizations and
> non-commercial activities.

  "Should" is an optional term in this context.  Jurisdictional restraints and
conditions would be key here.  Hence the contention in this argument is
not necessarily, or even likely adequate.

>
> However, Duncan, in this scenario is totally irrelevant if .ORG is U-U
> or U-R or S-U or S-R. You can have the scenario you exposes with actual
> model of .ORG.  The case you are exposing here is about Intelectual
> Property rights in the Non-Commercial World, not about restriction.

  Not really true.  It is both in reality.

>
>
> And the most difficult example you gave:  Tunisian government fake
> non-commercial organization vs Legitimate Non-Commercial Organization.
> I clarify you, again, this is NOT A RESTRICTION issue.  This is an issue
> of proper DRP process just like the previous
> case regardless if .ORG is UU, UR, SU or SR.

If U,U or S,U, than this becomes a non-problem.  With U,R or S,R
the problem becomes much more likely and distinct, not to mention
messy.

>

>
>
> And in the Unrestricted category, there are abuses already but the abuse
> comes from the Commercial interests that registers domains
> names only to protect intelectual property preventing that a legimit
> Non-Commercial organization (whether formally or not incorporated
> legally in their country) can be identified inside .ORG by its domain
> name that, by casuality, it is the same than the domain name of the
> commercial one.

  This sounds on the surface like a strong argument.  But as I briefly
outlined above, some commercial corps. have non-commercial
subsidiaries with the same name. So to go with this argument above,
one therefore restricts unfairly, and likely illegally non-commercial
entities related to existing commercial ones.  This would create
a legal morass that would dwarf what the present UDRP has
thus fare engendered thus far.

>
>
> Can we agree at this point that:
> 1.  Sponsored Restricted is the most effective way to prevent that
> commercial entities take away domain names that otherwise non-commercial
> could use for legimit purposes?

  No it isn't (See some of the reasons/arguments provided above
in response)...

>
> 2.  That Challenging Registrations is an issue about the DRP adopted and
> not about Restriction when you are dealing with the scenario
> Non-Commercial vs Non-Commercial?

  Also no this is not exactly correct to.  (Also see arguments provided
in response above).

>
> 3.  That a .ORG Charter in the model of Sponsored Restricted is open to
> define that there's no difference between Non-Commercial Organizations
> legally incorporated and Informal Non-Commercial groups and activities,
> and as such, the DRP process should not make any discrimination just
> because lack of legal documents?

Again no here as well.  Lack of proper legal documents must be in part
part of any DRP process.

>
> 4.  That being an "Sponsored" TLD is very important in the same level
> than being "Restricted or Unrestricted" because it obligates the
> Sponsoring Registry to engage with its target community?

  Yes, sponsored would seem to be a must.

>
>
> Looking forward to read your comments.
>
> Best Regards
> Vany
>
> Chris Bailey wrote:
> >
> > >Reply-To: "Pruett, Duncan" <dmtpruett@igc.org>
> > >From: "Pruett, Duncan" <dmtpruett@igc.org>
> > >To: "Chris Bailey" <chrisbailey@gn.apc.org>
> > >Subject: Fw: Discuss digest, Vol 1 #187 - 14 msgs
> > >Date: Mon, 24 Dec 2001 10:30:48 +0100
> > >X-Mailer: Microsoft Outlook Express 5.50.4133.2400
> > >
> > >Chris,
> > >
> > >I'm typing this from home, and here I'm not a member of the NCDNHC list, but
> > >something has to be said about Vany's comments. Please feel free to forward
> > >this to the list on my behalf (I won't be checking the list for a while, but
> > >I hope this contribution helps people/Vany understand the problem). In
> > >addition to arguing this out with everyone
> > >on the list, I went through this whole discussion with her on a subway train
> > >on the way to a reception during the Stockholm meetings - why can't people
> > >see how problematic this restriction thing is? Making .org restricted is the
> > >BEST way to open up the TLD for abuse. The easy example she gives of company
> > >ABC is too simplistic. That's how it should work in a perfect world. But it
> > >assumes that an international definition of a non-profit is possible. But it
> > >just isn't!
> > >
> > >Let me give better examples:
> > >
> > >Nicaraguans for Intellectuals Killed or Exiled (NIKE) registers "nike.org".
> > >They're a non-profit human rights group. Nike (the corporation) comes along
> > >and takes them to court using the special DRP under discussion. They
> > >challenge the non-profit credentials of the group in question. In order to
> > >prove that they are bona fide, Nicaraguans for Intellectuals Killed or
> > >Exiled have to produce their non-profit "registration" they got from the
> > >Nicaraguan government. But they don't have any, and it turns out that in the
> > >eyes of the Nicaraguan authorities, NIKE is an outlaw organisation (since it
> > >is critical of the government's policies) which would never register them as
> > >a non-profit. Nike (the corporation) can't have the name itself, but, like
> > >with the UDRP, it can demand that the registration be cancelled.
> > >
> > >Another: An IP lawyers' group in the US (a bona fide non-proft with the very
> > >trustworthy 501c3 status) wants "rights.org". But right now it's held by a
> > >human rights group in Zimbabwe critical of President Mugabe. Mugabe
> > >challenges the registration, to prevent this group having such a high
> > >profile on the internet, and the arbitrators are told by a sovereign state
> > >that the registration has been made by a "terrorist group". Do they have any
> > >choice but to accept Mugabe's definition. Once the domain name is cancelled,
> > >the IP Lawyer's group gets the name! A group in a country where there is
> > >less respect for the rule of law, or where the system is corrupt will suffer
> > >from an internationally enforcable definition. The group in the US, where
> > >there is a rock solid, uncorruptible system in place, will gain from an
> > >"international" definition.
> > >
> > >Another: In Tunisia, the government sets up a puppet NGO which registers
> > >"amnestytunisia.org" to put out positive human rights information about
> > >Tunisia. People in Tunisia and elsewhere may be duped into thinking that
> > >this site (filled with government propaganda) is linked with Amnesty
> > >International, whose real Tunisian chapter isn't even involved in putting
> > >out information about human rights in Tunisia (Amnesty local groups only
> > >campaign on issues outside their own country). Amnesty International
> > >challenges the registration, saying that the name is misleading and that the
> > >group is a fake. The sponsored TLD arbitration panel would be able to say
> > >that the local group is a registered non-profit, based on the national
> > >Tunisian criteria, and based on the organisation's papers. The complaint
> > >would fail. The current UDRP would give Amnesty a better chance of curbing
> > >the abuse than a sponsored DRP.
> > >
> > >Vany must look beyond the nice easy example of how the DRP could help, and
> > >look for ways in which it might do damage. Whether .org is sponsored or
> > >unsponsored is far less important than whether it is restricted or not. It
> > >should not be.
> > >
> > >This is an area where the democratic international trade union movement has
> > >a long experience. Groups (particularly membership organisations - think
> > >_freedom of association_ here) that do _good_ work in the field of rights
> > >and democracy often either undermined, or completely outlawed by their own
> > >governments.
> > >
> > >Happy holidays!
> > >
> > >Duncan
> >
> > _______________________________________________
> > Discuss mailing list
> > Discuss@icann-ncc.org
> > http://www.icann-ncc.org/mailman/listinfo/discuss
>
> --
> Nilda Vany Martinez Grajales, BSEE
> Information Technology Specialist
> Sustainable Development Networking Programme/Panama
> Member of the ICANN's DNSO Non-Commercial Constituency
> Tel: (507) 317-0169
> http://www.sdnp.org.pa
> e-mail:  vany@sdnp.org.pa
>
> Are you a Non-Commercial organization and have a domain name?
> Join the ICANN's DNSO Non-Commercial Constituency, ncdnhc.icann-ncc.org
> _______________________________________________
> Discuss mailing list
> Discuss@icann-ncc.org
> http://www.icann-ncc.org/mailman/listinfo/discuss

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 121k members/stakeholdes strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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