Re: [Re: [ga] GoDaddy:

["L. Gallegos" <jandl@jandl.com>]

Michael,

I think Richard was pretty much "right on" actually.  If there were no patent, ICANN would 
promote the monoply, embrace the corporate special interests and still not allow a reasonable 
voice for the users and registrants in any significant sense.  It totally ignored the consensus 
regarding WLS.

Yes, US and other laws may effect what ICANN could impose.  However, given what ICANN 
has done to date, there is little question that the majority of stakeholders are either ignored or 
supressed and that they will never have a meaningful "seat at the table."

Whether the US government in its enactment of laws that allow monopoly via patent is right or 
wrong or whether it is successful is not the issue where ICANN is concerned.  The issue with 
ICANN is that it would do the same thing and has done so under the guise of contracts and with 
policy that attempts to supercede law (UDRP).  This is true regardless of arguments made that 
ICANN does not attempt to create supra-legal authority.  The effect is there.  At the same time, 
it does not enforce those contracts when it would assist the user or domain name registrant.

The net result is totally unfriendly to any but the corporate and IP entities who wish to rule the 
DNS and commerce.

Leah


On 14 May 2003 at 15:32, Michael D. Palage wrote:

> Richard,
> 
> I think one the things that John and I have been trying to illustrate is
> that the Patent laws of the United States and other national governments
> supercede ICANN's authority in certain areas. ICANN does not have the
> ability under the guise of the adminitrator of the DNS to invalidate an
> otherwise valid patent. While Doster has retained competent legal authority
> to agrue the merits of the WLS before the ICANN staff/board, the United
> States government may issue SnapNames a patent that would preclude that
> competition that currently exists in the marketplace, forget the WLS.
> SnapNames would be able to keep 100% of the royalities for any licenses
> which it decided to grant. In essence, SnapNames could possibly
> out-monopoly the registry monopoly.
> 
> Consider the relevant parts of Section 108 - MISLEADING DOMAIN NAMES ON THE
> INTERNET of the recently enacted `Child Abduction Prevention Act' signed
> into law by President Bush.
> 
> (a) Whoever knowingly uses a misleading domain name with the intent to
> deceive a person into viewing obscenity on the Internet shall be fined
> under this title or imprisoned not more than 2 years, or both.
> 
> (b) Whoever knowingly uses a misleading domain name with the intent to
> deceive a minor into viewing material that is harmful to minors on the
> Internet shall be fined under this title or imprisoned not more than 4
> years, or both.
> 
> Under this law people will potentially be going to jail for the misleading
> use of a domain name. Under your view of ICANN, they could theoritically
> supercede this US law and give people a get out of jail card for free.
> ICANN as an administrator of the DNS has a set of contracts to enforce.
> Some people view these contracts as giving ICANN broad unlimited powers
> while other view these contracts as giving ICANN almost no power at all. My
> view is that the truth lies somewhere in between :-) ICANN has probobly the
> most difficult job in the world, being everything and
> 
> I understand that some/many people view ICANN as an agency/satellite of the
> United States government. Unfortunately, I do not share that view based
> upon my own first hand experience. I believe ICANN if allowed to work
> properly can provide a forum for all Internet stakeholders to have a voice.
> That being said, large corporations and intellectual property interests
> will likely play a continuing role in future ICANN policy development. What
> needs to happen is that all interested parties (registry, registrar,
> corporate, consumer, and non-profit) must have a seat at the table so that
> all voices are heard in the debate.
> 
> Just some food for thought.
> 
> Mike
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> > -----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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