RE: [wg-b] Revised IPC Proposal

["Hartman, Steve" <HartmanS@Nabisco.com>]

The law does provide for what you call "preemptive restraints" on the use of
words in the form of preliminary injunctions in trademark infringement
suits. (I cant' name one country where this isn't true, but there probably
are some.) Prior restraints in the US of spoken and written words are
extremely rare, but that applies to the use of words solely as language. The
IPC proposal does not affect the use of words on a website.(And in other
countries, Great Britain comes immediately to mind, prior restraint of the
written word is not uncommon.)


Steve Hartman

> -----Original Message-----
> From:	John Berryhill Ph.D. J.D. [SMTP:john@johnberryhill.com]
> Sent:	Friday, April 14, 2000 1:55 PM
> To:	mpalage@infonetworks.com; wg-b@dnso.org
> Subject:	Re: [wg-b] Revised IPC Proposal
> 
> The following reflects the comments made by Richard Sexton and by me
> during
> the SBA teleconference yesterday.  I will polish it a bit and submit it as
> an attachment to Mr. Palage.  If anyone wants to sign on, let me know, and
> I
> will send a final version around later today.
> 
> ---------draft comments-----------------
> 
> 
> Mr. Menge,
> 
> Thank you for providing the opportunity for those concerned to present
> their
> views on the impact of proposed new gTLD provisions on small businesses,
> and
> for soliciting input into the upcoming SBA Office of Advocacy report.  The
> following summarizes the two points that you had requested I send to you.
> Unfortunately, my legal training causes my "summaries" to sometimes be
> longer than the points themselves.  As far as getting consensus on a
> compromise proposal, you can scroll to the Conclusion.
> 
> Point (1) - The Proposals Have No Basis In Technology Or Law
> 
> My comments essentially boil down to the fundamental maxim of Law, "Where
> there is a right, there is a remedy."  The ICANN Intellectual Property
> Constituency's various exclusion or "sunrise" proposals are not in
> accordance with the remedial nature of the Law.  These proposals are for
> prospective, pre-emptive restraints of the kind that we do not permit our
> own government to exert in the enforcement of criminal law relating to the
> use of words.  Why should private individuals have greater power in the
> context of potential civil liability?
> 
> These proposals have perverted Law to "Where there is a right, there is a
> way to prevent people from violating it."  That has never been the way Law
> functions in our society, and it has certainly never been the way the
> Internet functions.  If it's not "technical administration", and if it is
> not "law", then I don't know what it is.  Technical concerns say (a)
> domain
> name allocations are to follow RFC1591 - firs come, first served and (b)
> there is a need for a larger name space.  The Law says that violations of
> private rights can be remedied after the fact.  The IPC/WG-B proposals do
> not arise from valid technical or legal principles.
> 
> EricMengeIsaPedophile.com is libelous, and has legal consequences as a
> string of text.
> HaveSexWithMeForMoney.com is a criminal solicitation.
> TheHolocaustIsaJewishLie.com is likewise a criminal utterance, but in
> Germany, not the U.S.
> MuhammadTheProphetAtePork.com is blasphemous and likely a capital offense
> in
> several countries.
> 
> Yet, despite these and other categories of legally significant utterances,
> some even criminal in nature, nobody is proposing a prior restraint on
> them.
> Trademark infringement is only a subset of a much larger category of
> legally-proscribable uses of alphanumeric characters.  Why, among all
> forms
> of legally significant text strings, are trademarks singled out for a
> heretofore unknown pre-emptive right?  Because ICANN, a technical body,
> has
> an "Intellectual Property Constituency" with non-technical concerns.
> There
> is no "Libel Constituency", "Criminal Solicitation Constituency", or
> "Religious Constituency".  Why not?  Because these issues do not relate to
> technical administration, which is the mandated mission of ICANN.  These
> are
> questions you can pass along to the GAO personnel studying the structural
> and delegated authority aspects of ICANN.
> 
> Despite the talk about the "importance of stability to the development of
> e-commerce", ICANN was not chartered to be about commerce or whatever else
> for which the internet might be used.  They are supposed to be running
> narrow technical aspects of a computer network.  "Do the bits get from one
> end of a wire to the other?" is not a legal question.  Re-engineering the
> remedial principle of law as a proscriptive technical policy makes no
> sense.
> 
> Trademark infringement happens in telephone book listings.  All kinds of
> shady folks get fradulent telephone book listings, or use "Yellow Page"
> ads
> which infringe trademarks or convey a false or unfair commercial
> impression.
> These situations are dealt with all of the time by trademark lawyers.
> They
> are not dealt with by providing a pre-emptive famous name list or a
> sunrise
> period for telephone books.  In fact, the makers of the telephone books
> are
> not held liable for these kinds of things.  In the context of 800 number
> assignments, the FCC has decided that dealing with trademark issues is a
> job
> for trademark lawyers, and not for technology policy makers at the FCC.
> Why
> should ICANN be any different?
> 
> The DNS is a telephone book. It maps names to numbers in precisely the
> same
> way.  Why is it that we manage to publish telephone books without
> difficulty?  Why would we argue about adding a new telephone exchange in
> an
> area code, become concerned that the possibility of a greater number of
> telephone listings would provide more opportunities for trademark
> infringement, and suggest that it would subject the telephone book
> publishers to legal liability?  Because they are ridiculous assertions.
> But
> somehow they are taken seriously in the context of the DNS.
> 
> Even when someone has successfully asserted a trademark right involving a
> telephone listing, the books themselves are not published again until a
> year
> later.  The DNS can be altered within a matter of hours to reflect a
> succesful, and remedial, assertion of trademark rights.  That serves the
> interests of IP owners even more efficiently than an analogous system
> -phone
> books -  with which we have lived comfortably for years.
> 
> To make the picture even clearer.  I can infringe trademarks with my
> business card, letterhead stationery or outdoor signs.  But when I walk
> into
> the print shop, there is no IP daemon sitting on the shoulder of the
> printer
> with the job of determining what words I may or may not have imprinted on
> my
> business materials.  I bear the legal consequences of my choice, but I am
> as
> free as anyone else to have my own business materials without having to
> wait
> outside during a "sunrise period" in which the "first among equals"
> negotiated what is to be left over for me to have.
> 
> And so we develop a byzantine system of chartered and non-chartered TLDs,
> and a system of restrictions and lists and sunrise periods on top of that.
> The next day after I, a lowly individual, am allowed to register domain
> names with the great unwashed masses, I obtain generic.generic (in the new
> "generic" TLD).  And the day after that I set up my server to resolve
> kodak.ibm.cocacola.generic.generic/kiddieporn.html .  Then what did any of
> this nonsense buy for anyone other than delay and large expense account
> bills?
> 
> Bold prediction #1 - there will continue to be rampant intellectual
> property
> violations on the Internet.
> Bold prediction #2 - there will be no way to prevent it, but there will
> remain remedies at law.
> 
> Point (2) - Artificial Constriction of the Name Space by the IPC is
> Hurting
> Small Business
> 
> There already are mechanisms to enforce trademark rights in cyberspace -
> the
> UDRP and the ACPA among them.  Both of these mechanisms are available to
> anyone who can afford a lawyer, which, with the UDRP includes many but not
> all small businesses.  Genuine cybersquatting hurts small businesses in
> smaller gross monetary terms, but perhaps in larger proportionate terms
> for
> the affected businesses, than it does larger businesses.
> 
> However, when BigBusinessCo is faced with a squatter who has occupied
> BigBusinessCo.com, .net and .org, then BigBusinessCo can readily afford to
> get rid of the squatter.  Joe's Fish Market is faced with a much larger
> problem, because they cannot so readily afford to do the same thing.
> 
> The presence of a large, and I mean very large, number of TLDs does two
> things to help Joe's Fish Market - it increases the cost of pre-emptive
> cybersquatting and it decreases the value of any one domain name occupied
> but not used.
> 
> If someone is sitting on the domain "cocacola.irrelevant", not producing
> any
> content at a corresponding website, and demanding thousands of dollars
> from
> Coca-Cola, then why would anyone, including Coca-Cola care?  The
> commercial
> injury to Coca-Cola of a tiny vacant island in a sea of thousands of TLDs
> is
> approximately zero.  In fact, it is actually zero.  Now, yes, there is
> such
> a thing as trademark infringement, but if the only thing one sees at a web
> site is "This Domain for Sale!" or "We Registered At Lousynames.com!" then
> what is the basis for any consumer to be confused about anything?  They
> were
> looking for a brown fuzzy beverage in a red can.  "Hmm.... must not be at
> this domain name...."
> 
> Conclusion
> 
> You had floated the compromise proposal of a mixture of "chartered" versus
> "non-chartered" TLDs, and how many of each there should be.  All I could
> think of during that portion of the discussion is to consider whether it
> would be a good idea to have a large quantity of even numbers or odd
> numbers.  In fact, there is no good reason not to have an infinite supply
> of
> both.
> 
> The mechanisms for restricting registrations according to various
> pre-emptive systems are flawed technically as they do not accord with
> RFC1591, and they are flawed legally as they do not accord with the
> remedial
> character of Law as we in the West have come to know it over a learning
> curve of hundreds of years.  The IPC does not have the technical
> background
> to run the Internet, and WG-B does not have the legal sophistication to
> re-write basic trademark law.  This is not how to run a computer network.
> 
> John Berryhill, Ph.D. esq
> Philadelphia, Pennsylvania
> 
> 
>