Re: [wg-b] Learning To Tune Out Distractions In An Open Room

[Milton Mueller <mueller@syr.edu>]

I have deleted the cc: to ICANN Board and staff members. The DNSO is supposed
to make its own policy recommendations. The purpose of working groups is to
allow the different factions to work out their differences on a smaller scale.
The modus operandi is supposed to be consensual rather than adversarial. I can
think of no better way for this WG to be "tuned out" as a distraction than to
continue broadcasting its disagreements, like quarreling children appealing to
parental figures.

See below for comments

"Martin B. Schwimmer" wrote:

> Through the papers' misrepresentation of the law and use of
> strawmen and absurd argumentation, WG-B and ICANN should recognize it for
> what it is - an attempt to achieve its goals through disruption and
> distraction - veto by heckling.

It is highly disruptive -- not to mention unfair and false -- to attempt to
dismiss in this fashion a legitimate proposal, defended reasonably and ably,
and supported by several working group members who are NOT members of the
NCDNHC constituency and had no hand in preparing the paper. Express your
disagreement, to be sure, explore compromises and concessions if you are able,
but don't accuse us of disruption. I have seen real disruption of an email
list, and this isn't it.

> Begin with the fact that in a work group tasked with critiquing the WIPO
> Report's conclusion that an exclusionary mechanism is appropriate, the
> NCDNHC does not mention the existence of the WIPO report at all.

Neither do the position papers of SONY, Time-Warner, 20th Century Fox, and
Eileen Kent.

> The proposal offers no justification as to why we should substitute the
> NCDNHC's judgment for the conclusions of WIPO's year-long examination of
> the issue - no overlooked issue, no new data, no superior insight.

That issue has been debated several times in this work group, please review the
archived records. You might begin with the fact that the majority of WIPO's
expert panel did not support famous mark exclusions. One of these panel members
openly stated that WIPO's own staff did not support it, but bowed to pressure
from what WIPO perceives as its constituency. I suggest that you read the
public comments in the WIPO proceeding, too, where you will find no support for
the notion other than among famous mark holders themselves, and substantial and
powerful criticisms of it from legal scholars, practitioners, and members of
the public.

> Countries implement their best attempt at defining fame - why can't ICANN do
> the same when attempting to implement good business practices?

ICANN is not a "country" government. It cannot and should not attempt to make
law, and defining fame does so. ICANN's founding document, the White Paper,
explicitly proscribes it from attempting to set itself up as a trademark court.

> There is no universally accepted contract law either - and yet ICANN enters
> into
> contracts.

Contracts are bilateral. Domain name exclusions are global.

> I doubt that anyone would make a straight-face argument that because of the
> policies of
> these countries, ICANN should not pursue the goals of human rights and
> freedom of expression.

ICANN should not do anything to harm human rights and freedom of expression
where it is protected. But it should not impose those values on countries where
they do not apply. Once again: ICANN is not a government. It is supposed to be
a technical coordination body.

> This proposal is reminiscent of Stalin's attempt to deal with anti-semitism
> by creating a Jewish automonomous region in a remote area of Russia called
> B'zer B'jan.  This proposal is as out of touch with reality and likely was
> made with as much concern for the subjects.

Comparing oppressed Russian jews threatened with genocide to corporations like
Sony, Disney, and Time-Warner strikes me as grotesque.

Comparing the outgunned and outmanned NCDNHC to Stalin is just silly.

It's time to recalibrate your rhetoric. We are talking about whether a handful
of multinational corporations use the UDRP or get exclusions. That's all. One
alternative costs them a few thousand dollars a year, the other shifts (much
larger) costs and burdens of policing and protection to domain name
registrants, registrars, and registries. We can make progress toward consensus
when we acknowledge that that is the only issue.

> Responses from the paper's authors to questioning on .fame have been
> sketchy but one thing is undisputed.  Simply put, the existence of
> xerox.fame has no effect on whether a pirate will register xerox.firm,

Your entire argument is based on an equivocation. You pretend that the
exclusions are supposed to do all of the work of trademark protection in domain
name spaces. You ignore the existence of effective national laws and the UDRP,
and you ignore the reality checks in my earlier message, which indicate that
few of the threats to famous marks take the form of [name].[tld]

> This would suggest that there is no presumption
> for example, that the exclusion of xerox.firm would be unconstitutional (in
> the US), even if the registrant had intended to disseminate protected free
> speech about Xerox on the site.

What a tremendous leap. A court has decided in one specific case that a name is
infringing. So you conclude that there's nothing extra-legal about making such
a decision without any kowledge of the facts. You go from a case-specific
decision based on an analysis of facts (jewsforjesus) to a blanket exlcusion
made prior to any use or any knowledge of the full range of registrations that
might be prevented. It's that leap that is wrong legally, and you know it.

> It is intellectually dishonest to state that "the recognition of famous
> marks can impinge on freedom of communication" while consistently ignoring
> the existence of cases which would uphold protection of the type the WIPO
> Report calls for.

Put simply, there are no such cases. Please point out to me where a judge in a
court of law has said that he can decide whether a domain name registration is
infringing in advance of knowing anything about the specific registration and
the circumstances of its use.

--
m i l t o n   m u e l l e r // m u e l l e r @ s y r . e d u
syracuse university          http://istweb.syr.edu/~mueller/