RE: [Re: [ga] GoDaddy:

["Elliot Noss" <enoss@tucows.com>]

John:

If only the patent system adhered to the spirit and the letter of that
created in 1790 we would all be in great shape. As someone who has been on
the back-end of patent blackmail on numerous occasions I can assure you that
they do significant damage to the software and Internet Services industries.
The fact that neither are crippled is proof of their strength not that
software patents do not cause significant drag. Besides John, as you well
know as a student of the history of patents, the focus should be on what
inventions they incent and I do not think that you would suggest that
Snapnames would not have developed what they did if they did not think they
could get a patent (ok I think that may be a quadruple negative :p). Nor
Amazon. Nor....

As for "I told you so" and gaming wrt WLS, don't be such a hog. Let's agree
to "we told you so" ;-).

Regards

Elliot Noss
Tucows inc.
416-538-5494

> -----Original Message-----
> From: John Berryhill Ph.D. J.D. [mailto:john@johnberryhill.com]
> Sent: Monday, April 14, 2003 4:22 PM
> To: Richard Henderson; Michael D. Palage; Elliot Noss; Andy Gardner;
> ga@dnso.org; discuss-list@opensrs.org
> Subject: Re: [Re: [ga] GoDaddy:
>
>
> 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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