RE: [ga] 4th Circuit Court of Appeals Reverses Barcelona.com Decision

["J-F C. (Jefsey) Morfin" <jefsey@club-internet.fr>]

At 17:01 03/06/03, Rodrigo Orenday Serrato wrote:
>Michael, I agree with you to some extent on the foregoing. In its 1998
>report on the Net, the Conciel d'Etat Fancise stated that the Net is an
>environment wherein all laws may apply, even in its present state.
>
>However, I have my doubts as to whether the solutions to which we may
>arrive by applying such laws, unamended in order to meet with the
>requirements of ITC are the proper solutions; that is to say, whether or
>not they are just and fair, considering that they may not always contain
>sufficient elements to comprise all interests at stake in a given case,
>as the underlying policy quite probably did not address them at the time
>such provisions were drafted.

To understand that you need to speak French and to think in French.
(or IMHO in Spanish, what should help you).

The Conseil d'Etat does not builds the missing IAB network architecture.
It only thinks logically, by layers. French wording and thinking and - I
suppose any Latin language thinking - can accommodate layers and
indifferently start from general to particular or from particular to general
depending if it is in search or resolution mode.

My experience is that English thinking does not proceed that way.
It also proceeds from particular to general also in resolution mode.
(I speak in most of the cases). With a major difference between
English and American: American scales every layer while English
may (and love to) easily jump several layers (this is the basis of
British humor: when the landing is not the one expected and why
the so much love abbreviated forms).

French experience about naming is 25 years old. Though the Intlnet
naming, created and managed by French among US Carriers and
European monopolies, but most of all though Minitel. There is a very
long experience by France Telecom (helped by being by then a
State Monopoly, so co-making the law) about ruling the naming,
hence about its true nature.

I must acknowledge that the French official thinking as not yet fully
resulted into legal wording along those lines, being confused by
AFNIC using the NSI technical and economical models. But we see
this clarifying through the emerging wording of "naming public
service" and our more and more accepted lobbying for digital
defense and sovereignty of States in naming and the e-human
rights which includes the right to network names, pseudonyms, etc.

As I explained many times the legal link is very easy. The confusion
comes from ACPA which does not define the DN except through
a loop saying it is what sells a Registry. Also from UDRP: the
UDRP recital defines all the words being used (it is a self defined
arbitration procedure) except the "Domain Name". A simple way
JDRP chooses to escape the difficulty.

As long as you make DNs subject to legal procedures you
confuse the issues and you will need laws you do not need.
ACPA or UDRP are the same as to say "TM belongs to the
TM holder but printed in blue TMs are specials and a special
law must apply". DNs are the internet shadow of mnemonics
pointing to IP addresses.

No one owns a shadow. One sees it. And no one can claim
he can use the shadow of someone else. Either he took his
shape (his mnemonic; his shape, etc.) or he did not.

So the cybesquatting issue is _not_ legal. It is technical.
Is a DN the network shadow of a mnemonic owned by the
registrant or the registrant may own, or is it not?

What is a mnemonic? Something everyone will remember
as associated to a product, a company, etc. So who can
decide about a mnemonic shadow? Only one: "everyone".

So we fall into the legal environment of the Minitel.

- there is no legal registration but declaration
- there is no legal cases but a user council deciding
   of the attribution of the "code" (this is the DN but
   it emphasizes that it is not a TM) as being clear
   enough. With the possible support of consumers
   organizations.
- a respect of the user with a site life long name
   and an economical model which makes the DN
   free and a direct relation with the users satisfaction.

Now we have the TLD (Registry) problem. Either
TLDs have a meaning or they dont. RFC 920, 1591
say they have a meaning. ACPA and to some extent
UDRP say they dont, making them only commercial
alternatives (best interest of the Registry, not of the
Users at large). On Minitel this is also ruled by the
Users (Telematic Council).


There may be other economical models. But you
not change that the NSI naming binary (name, IP)
approach is flawed. Pragmatic vision and  thinking is:
brainware/software/hardware or mnemonic/network
name/network address. It does not call for special
law, except to say that the law applies when so
many have been confused.


Now there is another point to respond your mail.
You question about legislating for TIC. This is only
a new (confusion) from American language born
in the 1996 reform. For years they tried to figure
out how to address the TCP/IP model vs the OSI
model. Eventually they worked out the "informatique"
(informatica) concept (they still talked about EDP
and abandoned punch cards last year - I am
talking about legal concepts) and addressed
the internet as the computers (again 47 USC
230 (f)(1)) still very far from the service notions
of "telematique" (the users/telemate centralized
control). Basically you have to think in layers
again. Internet is the connection layer. OSI is
the communication upper layers, but the world
is leaving in services (extended services the
layers still above). So TIC are meaningless to
the market and to the legal problems. What you
want are TICS. Then you understand why you
dont want special laws:

1. let assume you buy a ticket to Hong-Kong.
2. let assume they fly you to Djakarta.

Will you make a difference in your complaint
if the ticket was printed through internet or
manually by a sales. You are just unhappy
and want your money back  Uses do not care
about TIC layers, they only are interested in
S layers. The only law we need is to protect
the users who might be abused by S sellers
taking the TIC part as an alibi for S legal
violations like in e-commerce.

jfc




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