Re: [ga] Stolen domains, transfers, WHOIS, audit trails, and systemintegrity

[Karl Auerbach <karl@CaveBear.com>]

On Fri, 6 Dec 2002, George Kirikos wrote:

> --- Karl Auerbach <karl@CaveBear.com> wrote:
> > If you look for the protection of rights and if you feel that you
> > have an 
> > unequal bargaining power to enter into contracts that protect your 
> > interests, then the place to go is a legislature, not ICANN.
> 
> Which legislature? I'm in Canada, the seller might be in Korea, and the
> registry might be in the US, whereas the gaining registrar could be in
> France, with the losing registrar in Germany.

There are many who think that our Internet situation is somehow new and
unique.  It is not. The internet is not the first situation in which
people have had to deal with cross jurisdictional protection of perceived
rights.  In fact, issues such as these have been around since the time of
Columbus.  And solutions have existed since time time of the Medicis.

As a general matter, one obtains judgements from courts where the harm
occured or where the parties are to be found.  And there are established
rules for domestication of foreign judgements.  Of course, domestication
of a foreign judgement may not succeed - In our multicultural world, it is
simply a fact of life that what is considered a wrongful act in one place
may be completely acceptable elsewhere.

There are legitimate complaints to be raised against the time and expense
of these processes.  But let's fix those problems, not try to invent an ad
hoc substitute legal system.  I can guarantee you that many of the reasons 
that the legal system is slow and expensive are that it has had to learn 
to handle all the issues of fairness and external manipulation that are 
sure to surface in any ad hoc substitute.

> I'm all for enforcing contractual rights -- but make it a little bit
> easier...

How?  By doing what ICANN has done?  By creating amateur courts that use
ad hoc jurisprudence to apply law-equivalents created in forums that were
filled only by trademark industry advocates?

One should not forget that the UDRP was railroaded through a partially
formed DNSO that at the time had less than half of its "constituencies"
functioning.  Those who were around at that time are unlikly to forget how
ICANN's president labeled as "arrogant" and "juvenile" those who objected
to the way in which the UDRP was created and decreed in a way reminiscent
of a Roman Imperial Fiat.

> I'd like to be able to say that on December 6, 2002, I have clear title

As Marilyn Cade mentioned in her comment, businesses consider the UDRP 
merely a first strategy and consider the legal system as a the backup.

So, even if you win on the UDRP, you really can't say that you have "clear
title".  ICANN's ad hoc system can not provide finality.  ICANN merely
gives trademark owners two bites at the apple.

The power to decide with finality which rights take precendence over
others is a power of government.  It matters not whether one uses the word
"government" or "private", the exercise of power is the same in either
case.

ICANN was never equipped to be a legislature, and ICANN's elimination of
the public from its policy making forums makes it even less well equipped
to handle a synoptic debate of the issues from all points of view.

I need hardly remind everyone that if ICANN fails, its pyramid scheme of
contracts will collapse into chaos.  And any dispassionate review of facts
and events indicates that there is a real and serious risk that ICANN will
collapse.  That risk of collapse is only increased as ICANN steps further
off the safe ledge of "technical coordination" and seeks to usurp the
kinds of powers that have more traditionally been exercised by sovereign
nations.

	--karl--

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