Re: [ga] WLS

[Gary Osbourne <gro@direct.ca>]

At 08:30 AM 19/06/02 -0400, Joe Sims wrote:

>Could someone explain to me precisely how the WLS would harm
>consumers and/or registrars?

In addition to what others have said, which I
generally agree with, though I am not in a
competitive position to VeriSign as some of
them are, I look at this from the viewpoint of
the consumer, that is, both those who register
and actually use domain names and those who
don't, but use the internet and make use of
domain names as source identifiers.

I fail to understand the logic of allowing
unrelated third parties to register previously
used names at all. See my article here:
http://www.icannwatch.org/article.php?sid=431

and Ben Edelman's research here:
http://cyber.law.harvard.edu/people/edelman/renewals/

for examples of the damage that can be caused.

The DNS was brought in so that humans didn't have
to rely on non-intuitive IP numbers. Allowing anyone
with the cash to re-register others' expired names
means that we are now replacing non-intuitive IP
numbers with often (and often intentional) counter-
intuitive names. I don't think that's progress.

The DNS was also brought in as domain names have a
permanence that can be shifted from one (or more)
IP address to another. If those domain names can
now be shifted, even without the original 'owner's'
consent, again we are worse off than before.

I find it surprising that ICANN would want to be
known as the entity that broke the functionality
of the DNS. Admittedly, such re-registrations
went on prior to ICANN's existence, but it has
grown from a small trickle to a flood. Rather
than stem that tide, ICANN seems poised to further
enable it. And admittedly the question of what to
do with expired names was never addressed by Paul
Mockapetris et al as at that time it wasn't
considered that anyone would have reason to let
a name lapse, and if anyone did there would be
no reason back in those halcyon for anyone else
to register it, both because it seemed as though
there was an endless supply of names, and because
a once-used name was damaged goods, re-using it
would only cause confusion. Now we appear to want
to cater to those who profit from confusion.

I don't imagine we can wind back the clock, and
I doubt there would be much support, and certainly
no consensus (unless one asked end-users and
individual registrants), for a freeze on allowing
the re-registration of dropped names, but I find
it unseemly that ICANN should be actively involved
in encouraging this practice. At the very least
I think the proposed grace period has to be fully
implemented for at least one month (or one grace
period) before allowing the WLS to go ahead.

I also find it surprising that ICANN, VeriSign,
or anyone else involved in this practice, would
leave themselves open to litigation by the prior
holder of the domain name. Many of the examples
of expired and re-registered names at, or
following from, the above two links, were never
meant to be dropped, many were registrar error,
this wasn't just someone neglecting to pay a bill
(for which I don't have much sympathy).

I know the prior holder has to agree to a contract,
but (and IANAL) I don't think clickwrap contracts
are yet seated on a bedrock of unassailable law,
even in the US. Also (and IANA.caL either) in
Canada at least, a contract that is subsequently
unilaterally modified by one party without the other
party's explicit informed consent to the change is
also resting on a very shaky foundation.

It is one thing for some enterprising person to
register a previously registered but never used
name and make use of it, in fact that is laudable
as it helps to alleviate (at least a perceived)
shortage, but that is not what is happening.

The idea(l) that someone has some killer app or
website or whatever waiting in the wings
unpublished just because a certain name isn't
available is untenable, even laughable. Surely
a modified version (eg: a a number added) or
a version in another gTLD or repurposed ccTLD
or an entirely different name would fit the bill.

I've registered scores of names for myself and
clients and I often find my first choice registered
but I have never been stymied for any length of
time for a replacement, and I certainly wouldn't
wait for a name to drop before proceeding, that
is absurd and ludicrous.

I have also let a number of desirable names lapse
over the last couple of years which I never got
around to using (I'm not a speculator) and they
all remain un-re-registered.

It is specifically those names with prior use,
prior traffic, prior links in, including desirable
search engine position listings (one could say,
someone else's intellectual property), which are the
names in demand, and which are subsequently often
used for entirely unrelated purposes. In addition
to the damage often caused to the prior registrant's
reputation, and the confusion caused to the end-user,
are the very real dangers of confidential email
going to the wrong person, or the subsequent
registrant passing themselves off as the original
and requesting confidential information via email
or web-form. Indeed, it is plausible to imagine
some subsequent registrant passing themselves off
as the former registrant to the former registrant's
hosting provider and capturing the entire contents
of the former registrant's website, including, for
example, a credit card database. I can think of
numerous other damaging exploits and I make no
claim to being able to match the devious minds
which already prey on internet loopholes.

The only other entities I can see waiting for
names to expire are those speculators who rarely
if ever sell names but are caught up in a similar
collector mania to those who collect Beanie Babies
or Olympic pins, and trademark interests who want
to protect every typosquatted version of their
names without the bother of the UDRP. I don't think
any of these entities should hold more sway over
policy than existing registrants making fair use of
names they've paid for and otherwise invested in.

Surely sooner or later someone with deep pockets is
going to be harmed by this practice and sue all and
sundry. I'm not entirely sure that they would lose,
and even if they do, how many such suits, some filed
in foreign jurisdictions, can ICANN afford to defend?

So I would in turn appreciate a simple and clear
explanation why you *apparently* think this practice
cannot lead to litigation that could lead your client
into grave, even fatal, financial difficulties. -g
   

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