[ga] Petition for Reconsideration before ICANN

[KathrynKL@aol.com]

To the GA:
This is my first posting here, but I see you have talked about the problems 
with the Names Council WG-A Report before.  WIPO's definition of 
cybersquatting and the framework for the first mandatory international 
arbitration involving Internet matters passed through the Names Council to 
ICANN in a blaze -- without the GA and without the Noncommercial Domain Name 
Holders Constituency (NCDNHC).  

Below is the petition for reconsideration (in letter form) submitted by the 
NCDNHC to ICANN today.  It is based on the principle that the Names 
Council/ICANN should not be creating substance when we (the individuals and 
noncommercial community) are still forming our constituencies (in good faith 
and with the speed of heterogeneous individuals and groups working hard 
together).  

If you agree with the letter, please join us, as individuals or as the GA, in 
writing to ICANN.  The website for the WG-A Report to ICANN now on public 
notice is http://www.icann.org/santiago/udrp.htm.  The email for comments is 
comment-udrp@icann.org.

Kathryn Kleiman
ACM's Internet Governance Committee
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To:         ICANN Interim Board
From:       Non-Commercial Domain Name Holders Constituency (NCDNHC)
Re:         Return of WIPO Cybersquatting Recommendations to DNSO
                for Full Participation by the NCDNHC in its Review
Date:       August 16,  1999

On August 3 1999, Working Group A (WG-A) of the DNSO
Preliminary Names Council reported to you on its recommendation to
accept the cybersquatting and mandatory arbitration procedures of
WIPO in almost their entire original form.  WG-A's report fails to
mention that not a single elected representative of the Non-
Commercial Constituency voted on the report or participated in the
discussion.

We, the Non-Commercial Domain Name Holders Constituency, 
believe the discussion on this critical new law of the Internet -- the law
of cybersquatting -- and its untested mechanism of administration -- an
international arbitration traditionally geared to large and represented
commercial players -- needed the voice and views of the
noncommercial community to achieve a fair and balanced result.   

After reading our letter, we trust that you, the Interim Board of
ICANN, will not allow this critical domain name policy to proceed
without our input.  We ask that -- without any further consideration or
adoption -- you return the WIPO Cybersquatting Recommendations to
the DNSO for another full review.   We believe the legitimacy of the
DNSO depends on this action. 


     I.   Without the NCDNHC, the DNSO/WG-A Had No Formal
        Voice for the Non-Commercial Community.

The NCDNHC is the only formal representative of the non-commercial
community in the DNSO.  We are the most heterogenous of the
constituencies, and therefore the most difficult to organize. We now
represent local and regional community organizations, networking
projects, educational institutions, universities, libraries and
government watchdog groups.  

Our organizations and their members have many domain names, but
few trademarks.  Thus, it is our groups and their members who will be
among the targets of the future cybersquatting challenges and the
mandatory arbitration procedures that may remove our domain names.  
We are the ones who will be hurt by an overbroad definition of
cybersquatting which protects commercial uses of basic words and
phrases beyond infringement or dilution.  We are the ones who will be
hurt by the shadow cast on good faith efforts to settle a
trademark/domain name conflicts. We are the ones who will be hurt by
a remote international arbitration system with little understanding or
sympathy for small noncommercial organizations and noncommercial
speech on the Internet. 

Our voice would have been the voice of balance and it was this voice
that was missing from the WG-A discussions and the Names Council
report to you.  We would have pushed for more balance in the
cybersquatting definition between trademark rights and
noncommercial fair use.  We would have argued for balance in
punishing bad faith challenges of domain names (reverse domain name
hijacking) as well as bad faith registration of domain names
(cybersquatting).

We would have pushed for a full and considered review of the recent
work of the US Senate and its experts   a work which found the WIPO
cybersquatting definition to be overbroad with severe unintended
consequences for noncommercial domain name holders and
noncommercial speech on the Internet.  The Senate's work is
consistent not just with US law, but with traditional ** international
principles ** of trademark law and its limits. 

II.       The NCDNHC Is Ready to Participate and Proceeding Without
          Us Casts an Unnecessary Shadow on the DNSO and ICANN.

We, the NCDNHC, are ready and able to participate!  In Berlin,
organizers of the NCDNHC told ICANN that we would be organized,
have a charter, and elect Names Council representatives before the
Santiago meeting.  It was an ambitious plan, but we are happy to say
that we are nearly finished with this start-up work.  We have over 46
member organizations from every region of the world.  We are truly
diverse and international, and interested in working within ICANN to
create positive domain name policies for the Internet. 

But we are dismayed by our reception to the DNSO:  by a deadline on
the cybersquatting definition and arbitration procedures that passed
before we could elect our representatives to participate; by a report
from Working Group A that did not even bother to explicitly
acknowledge our absence; and by the push for speed at the expense of
participation, buy-in, and legitimacy.  

This is not the right way to begin a new institution and this is not the
way to recognize and welcome the new energy and opportunity of our
Constituency.   We think there is time for the DNSO with NCDNHC
elected participation to review the WG-A Report; we think there is
time to take a step back and get the process right. 

Conclusion:

We, the Non-Commercial Domain Name Holders Constituency, have
met our commitment: to build a robust, diverse and active non-
commercial constituency.  We ask you, the ICANN Interim Board, to
meet your commitment to make us full-fledged members of the
DNSO, and to create structure first and policy second.  

We ask that you return the full WIPO Cybersquatting definition and
mandatory arbitration procedures to the DNSO for review and
participation by all of its now-organized constituencies.  Please don't
take the risk of proceeding with bad feeling and bad policy.  

The Non-Commercial Domain Name Holders Constituency