Re: [Re: [ga] GoDaddy:

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

From: "Richard Henderson" <richardhenderson@ntlworld.com>

> If this was done in the interests of the common
> good, then there might be some sympathy, but the culture is driven by
> corporate greed and the desire to "lock out" others and stop them from
> competing.

Yes and no.  There is something to be said for being rewarded for one's
creativity.  Most of the debate is about the extent and duration of such
rewards.

> It is absolutely obvious that access
> to domain names - in this case expiring domain names - should not be
> constrained by one entity claiming a monopoly of access.

Call me an agnostic, but where one comes out on that question (if one does
not have an interest either way) probably has more to do with one's childhood
introduction to hygenic practices.  Some folks like things to be more orderly
than other folks, and they have different visions of "the way things ought to
be".

I find that a lot of the arguments in favor of WLS rely on
factually-unsupported conclusions and a heavy dose of wishful thinking.  I
just want to establish a sufficient record to be able to have the personal
joy of saying "I told you so" when, after WLS is implemented, it results in
adding just another layer of gamesmanship to the expiring domain game,
instead of ushering in a socialist utopia.

> The case for a
> patent in this specific case implies an assumption that a corporate
interest
> has the right to prevent others from offering similar services and similar
> access to this element of the DNS.

The case for a patent is whether it satisifies the relevant conditions of 35
USC 101 et seq.  Despite the periodic wailing about "software patents", has
the software industry been crippled by patents?  If it has, I haven't
noticed.

Do bear in mind that we are talking about a couple of pending applications
which have not yet issued as patents (although I see no reason to believe
they will not issue).

But the assumption behind every patent is ensconced in the US Constitution,
which empowers Congress to establish a system providing inventors with a
time-limited exclusive right to their inventions.  Congress chose to
immediately exercise this power in 1790

> The widespread perception is that ICANN is merely an agency/satellite of
the
> United States, working in the interests of big business and corporations,
> and protecting the ability of the US to exert controls over this worldwide
> resource.

If "this worldwide resource" is embodied in a zone file maintained within the
jurisdiction of a US legal authority, then that's just the way things are.
Until we launch the relevant servers into orbit, then they are going to be
subject to the law of wherever they are.

That said, one of the things that a techhnical coordinating body can do is to
establish rules of play among the actors who are going to accept coordination
by such body, within the extent permitted by anti-trust laws.

For example, it is not uncommon as a condition of participation in a
standards-setting organization that an entity will be required to disclose
any relevant intellectual property rights claimed in the subject of the
standard, and agree to non-discriminatory or royalty free licensing of such
rights.  There are holes in the ICANN-generated contractual web,  probably
resulting from an excess of influence within ICANN by the parties with whom
ICANN contracts.  However, there is a coming ripple of patents in such areas
as WLS, registrar services, ENUM, etc. which are worth watching by those
having responsibility to set policy in this area.

> Such a hijacking of this resource is offensive to those who
> believe that the Internet and the DNS belong to a far wider community, much
> of it excluded from effective decision-making in the ICANN Boardroom.

If the inventors of these patent were the first to invent, are all named in
the patents, and did not derive the invention (or chunks thereof) from other
people.  And if there is no applicable prior art from the various critical
dates established in 35 USC 102, then it's not really fair to call this a
"hijacking".  They were there first, and I am sure they would consider the
proliferation of the methods they (allegedly) invented, to be something of a
hi-jacking itself.

But there are some other possibilities that are more interesting.  Let's say,
for example, that one of the TLD applicants had filed a patent application
relating to characteristic aspects of their TLD.  I do not believe that any
of the 47 applicants were ever asked by anyone if they claimed a proprietary
right in the methods they proposed to run a registry - imagine, say, Mike
Palage as having a patent entitled "Method of Conducting a Pre-reservation
Period for Trademarks in a Top-Level Domain" (although Mike would have to
finally name his "mystery friend" as at least a co-inventor).

If Mike and his friend had thought about it, they should have filed such a
patent application, since sunrise periods for new TLDs may be a foolish but
regular feature of future TLDs (but don't hold your breath).

Conducting the TLD application process without requiring such disclosure, or
a license-back provision, was a characteristically dumb and dangerous thing
for ICANN to do.  If ICANN awards a TLD franchise to a party who has a patent
on the method of running that TLD, then ICANN essentially loses the
contractual power upon which ICANN relies for recognition of its authority.
A TLD operating in accordance with a proprietary method simply cannot be
re-delegated by ICANN to another entity.  If the registry and ICANN get into
a dispute, the only thing ICANN can do is pull the plug on the TLD.  And that
is a "stability" problem.

> John Berryhill, of course, relies for his reputation upon a certain
> detachment and objectivity in such matters

As Mike points out, I have a season pass for the cheap seats at ICANN
stadium.

That does remind me of one more thing relative to, say, Verisign patents.
NSI did a lot of its development work, and of course performed a variety of
DNS functions under contract to the US government.  Depending on who did
what, and where the money came from, there could be issues under the
provisions of 35 USC relating to inventions made during the course of
government-sponsored research.

Now that certain DNS functions are operated under a contract with ICANN, the
mandatory licensing provisions of the patent statutes evaporate, but ICANN
has added no counterbalancing licensing provisions into its contractual
scheme.



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