RE: [Re: [ga] GoDaddy:

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

What incentive does ICANN have to do enforcement?  How do these compare to
the incentives NOT to do enforcement?


On Wed, 14 May 2003, Elliot Noss wrote:

> It has always been my view that an ICANN not constantly under attack around
> structural issues would be much better able to deal with contract
> enforcement. We have been VERY public about the need for greater
> enforcement.
> 
> I will leave you with a paradox. The less International involvement in ICANN
> (ccTLDs, strong functioning RALOs, etc) the tighter the DoC will keep ICANN
> to its chest. Thus, what many outside the US (and remember I write this from
> Canada) complain about most is perpetuated by those very complaints. And if
> you look at it upside down the old woman looks like a beautiful young girl
> ;-).
> 
> Regards
> 
> Elliot Noss
> Tucows inc.
> 416-538-5494
> 
> > -----Original Message-----
> > From: Richard Henderson [mailto:richardhenderson@ntlworld.com]
> > Sent: Wednesday, May 14, 2003 3:10 PM
> > To: Elliot Noss; ga@dnso.org; discuss-list@opensrs.org
> > Subject: Re: [Re: [ga] GoDaddy:
> >
> >
> > Fair point to a degree Elliot!
> >
> > I wasn't trying to connect ICANN to the specific patents.
> >
> > I do, however, assert that ICANN has tended to support the IP lobby and
> > afford it a status and priority (for example, in its Sunrise
> > provisions for
> > New TLDs) that lends credence to the view that ICANN puts corporate
> > interests generally (and US interests specifically) ahead of other parties
> > with legitimate claims to determine the way the DNS is administered. US
> > interests are protected (at a convenient distance) through the
> > quasi-policy
> > making effected by ICANN, and through ICANN's accountability to DoC.
> > Corporate interests, and the interests of the DNS supply industry
> > (registries and excellent registrars like your own), have - in my view - a
> > disproportionate voice in the ICANN universe, compared to the interests of
> > ordinary internet users (sometimes labelled 'at large'). ICANN showed its
> > disregard for the at large constituency when it resolved to expel the
> > elected representatives from its Board.
> >
> > It has shown doubtful commitment to consumers and ordinary internet users,
> > in the way it fails to be responsive to objective and informed concerns
> > (when these are awkward), and its inaction when the DNS supply industry
> > abuses ICANN agreements and processes. The ordinary internet user may be
> > left with the impression that there is a cosy accommodation of
> > IP, registry,
> > and registrar constituencies - and a self-perpetuating clique of
> > parties who
> > protect their own interests while overlooking the interests of the vast
> > majority of internet stakeholders who should matter most of all : the
> > hundreds of millions of ordinary internet users.
> >
> > I'm not sure I was trying to identify a 'nexus' in the snap
> > patent thread :
> > I was just picking it up, because it seems to further demonstrate
> > a view of
> > the DNS as "something to be made a profit out of" - a view which seems to
> > extend to ICANN and its policies. Primarily, policy-making and the
> > administration of the DNS should not be driven by parties intent on making
> > profit, but by stakeholders who simply want to "use" the DNS and have a
> > right to do so (setting aside the digital divide, of course).
> >
> > Don't get me wrong. I use Tucows resellers more than any other registrars,
> > and I like and respect the service I receive (hence my choice). I
> > value the
> > many registrars of integrity and the service they provide and I need.
> >
> > But I regard the realm of expiring domains as a world resource which
> > everyone should have equal access to, and I dislike *one* company gaining
> > any kind of monopoly which will result in them exploiting that monopoly to
> > charge exorbitant fees for a commodity which they themselves may then hold
> > to ransom.
> >
> > It's interesting how much cheaper many expiring domains are if
> > you buy them
> > (for example) through Dotster's "Namewinner". Admittedly, that
> > may not be so
> > if you are going for a rare name, but most expiring names sell very cheap
> > through them. I like the variety of models, which offers both consumer
> > choice and competition.
> >
> > Having said that, I personally would favour a Landrush style release of
> > expiring domains, with a minimal price, paid retrospectively by
> > consumers if
> > they successfully register a particular name. In short, I believe
> > registrars
> > should often "get out of the way" of the process, instead of
> > inhibiting it,
> > making profit from it, or in any way taking advantage through
> > their position
> > in the supply chain. The DNS should exist "for the sake of the consumer" :
> > NOT "for the sake of the DNS supply industry".
> >
> > Having acknowledged some outstanding registrars of integrity,
> > trying to make
> > an honest living like the rest of us, I think you would agree
> > that there are
> > also some appalling registrars who demean your industry and
> > seriously damage
> > the interests of ordinary consumers. I have cited extensive and detailed
> > examples of registrar corruption (including one registrar still operating
> > under your Tucows banner) and appealed to ICANN to uphold its own
> > agreements
> > and address the standards of businesses it endorses (accredits) to the
> > public.
> >
> > ICANN has shown a very laissez-faire attitude to the situation.
> >
> > With regard to Snap patents, though ICANN is not involved in these
> > applications, it creates the climate and culture where the DNS comes to be
> > seen as a commodity whose suppliers are protected while the consumer often
> > seems abandoned.
> >
> > Yrs,
> >
> > Richard Henderson
> >
> > ----- Original Message -----
> > From: Elliot Noss <enoss@tucows.com>
> > To: Richard Henderson <richardhenderson@ntlworld.com>; <ga@dnso.org>;
> > <discuss-list@opensrs.org>
> > Sent: Wednesday, May 14, 2003 7:41 PM
> > Subject: RE: [Re: [ga] GoDaddy:
> >
> >
> > > Richard:
> > >
> > > I am missing something. How do you connect ICANN in any way to these
> > > patents? In addition, IIRC, ICANN has only tabled, not endorsed
> > the WIPO2
> > > proposals. Where is the nexus here?
> > >
> > > Regards
> > >
> > > Elliot Noss
> > > Tucows inc.
> > > 416-538-5494
> > >
> > > > -----Original Message-----
> > > > From: Richard Henderson [mailto:richardhenderson@ntlworld.com]
> > > > Sent: Wednesday, May 14, 2003 1:20 PM
> > > > To: Michael D. Palage; John Berryhill Ph.D. J.D.; Elliot Noss; Andy
> > > > Gardner; ga@dnso.org; discuss-list@opensrs.org
> > > > Subject: Re: [Re: [ga] GoDaddy:
> > > >
> > > >
> > > > Very witty Michael, but what I find weird is that the same
> > culture that
> > > > claims to promote the free market and competition, is also the
> > > > culture that
> > > > tries to infringe the rights of others to compete, through the
> > > > burgeoning IP
> > > > lobby and the attempt to "own" through patents, and keep others out of
> > > > legitimate competition. 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.
> > > >
> > > > What I find sad is that ICANN - in its administration of the world's
> > DNS -
> > > > has such a propensity to embrace the predators at the expense of the
> > > > consumers, and condone the "annexing off" of language, ideas and the
> > DNS,
> > > > instead of protecting an open market. 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. 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 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. 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.
> > > >
> > > > John Berryhill, of course, relies for his reputation upon a certain
> > > > detachment and objectivity in such matters : but they are
> > > > certainly matters
> > > > which merit close scrutiny.
> > > >
> > > > Richard Henderson
> > > >
> > > > ----- Original Message -----
> > > > From: Michael D. Palage <michael@palage.com>
> > > > To: John Berryhill Ph.D. J.D. <john@johnberryhill.com>; Elliot Noss
> > > > <enoss@tucows.com>; Andy Gardner <andy@navigator.co.nz>;
> > <ga@dnso.org>;
> > > > <discuss-list@opensrs.org>
> > > > Sent: Wednesday, May 14, 2003 5:36 PM
> > > > Subject: RE: [Re: [ga] GoDaddy:
> > > >
> > > >
> > > > > Here are some additional questions that I would like to
> > propose to the
> > > > list.
> > > > >
> > > > > Question #1:
> > > > > On what date does John Berryhill stop posting material to the list
> > > > > concerning this subject matter. The significance of this event
> > > > is that is
> > > > > the date John is likely to be retained by a client in this
> > > > matter. Having
> > > > > gotten to know John over the years, he would never engage in
> > > > such a public
> > > > > discussion if he was representing a client because of the potential
> > > > ethical
> > > > > considerations that it would raise.
> > > > >
> > > > > Question #2
> > > > > When John goes silent, who is the client that has retained his
> > services:
> > > > > SnapNames; VeriSign; Doster; TUCOWS; or some other
> > registrar(s). This
> > is
> > > > the
> > > > > question that I find most interesting because John probably
> > > > does have the
> > > > > biggest inbox of prior art on the subject matter.
> > > > >
> > > > > Mike
> > > > >
> > > > > > -----Original Message-----
> > > > > > From: owner-ga@dnso.org [mailto:owner-ga@dnso.org]On
> > Behalf Of John
> > > > > > Berryhill Ph.D. J.D.
> > > > > > Sent: Monday, April 14, 2003 10:21 AM
> > > > > > To: Elliot Noss; Andy Gardner; ga@dnso.org;
> > discuss-list@opensrs.org
> > > > > > Subject: Re: [Re: [ga] GoDaddy:
> > > > > >
> > > > > >
> > > > > >
> > > > > > From: "Elliot Noss" <enoss@tucows.com>
> > > > > >
> > > > > >
> > > > > > > John, are you sure about 12/99? I thought it was 2000 as well.
> > > > > >
> > > > > > If you take a look at the first paragraph of the application,
> > > > it states:
> > > > > >
> > > > > > "[0001] This application is a continuation of and claims priority
> > > > > > from U.S.
> > > > > > Provisional Patent Application No. 60/245,102, filed Nov. 1,
> > > > > > 2000, and U.S.
> > > > > > Provisional Patent Application No. 60/248,341, filed Nov.
> > 13, 2000.
> > "
> > > > > >
> > > > > > There are several things going on here.  First of all, a US patent
> > > > > > application can claim the filing date of an earlier-filed
> > provisional
> > > > > > application, so long as the regular application is filed within a
> > > > > > year of the
> > > > > > provisional.  That was done here.
> > > > > >
> > > > > > There were two provisional applications filed in November
> > 2000.  We
> > do
> > > > not
> > > > > > know at this time to what extent those provisionals may or
> > > > may not have
> > > > > > adequately supported the claimed material of the later US
> > > > > > applications.  But
> > > > > > for the purpose of focussing efforts productively, it is
> > > > conservative to
> > > > > > assume that the support was there.
> > > > > >
> > > > > > So, that assumption provides the pending application with an
> > > > > > effective filing
> > > > > > date of November 2000.
> > > > > >
> > > > > > Now, there are a couple of categories of things that qualify as
> > prior
> > > > art.
> > > > > > One category would be to show that the invention was known and
> > > > > > used by others
> > > > > > prior to the invention thereof by the applicant.
> > However, the date
> > of
> > > > > > invention is not objectively knowable on the basis of evidence
> > > > > > available to
> > > > > > us.
> > > > > >
> > > > > > The most reliable category of prior art are things that were in
> > > > > > public use,
> > > > > > published, or on sale more than one year prior to the effective
> > > > > > filing date
> > > > > > of the application.  That critical date is objectively knowable
> > > > > > to us at this
> > > > > > time, and that date is November 1, 1999.
> > > > > >
> > > > > > Additionally, everyone ought to know that during prosecution of a
> > > > > > US patent
> > > > > > application, anyone connected with the application (the
> > > > > > applicant, the owner,
> > > > > > etc.) has a duty to submit copies of relevant prior art
> > > > > > information of which
> > > > > > they are aware.  There's no duty to go out and look for stuff,
> > > > > > but assuming
> > > > > > they are reading this list, then they would do well to submit
> > > > copies of
> > > > > > relevant archives that are posted here.  This will help
> > them obtain
> > a
> > > > > > stronger patent, as will any attempt to submit material to the
> > > > > > patent office
> > > > > > at this time, since they will be the only ones involved in arguing
> > > > around
> > > > > > such material and/or amending the claims ever so slightly
> > to avoid a
> > > > > > rejection based on such material.
> > > > > >
> > > > > >
> > > > > >
> > > > > > --
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> > >
> >
> 
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