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

[Harald Tveit Alvestrand <Harald@alvestrand.no>]

[Note - I have kept the largely irrelevant CCs, because of my comment on 
the style of Martin Schwimmer's missive. I encourage others to delete them 
when responding.]

Note about the content of this message:
It was quite hard to keep my patience by the time I got to the end; his 
style of argument is not easy to deal with.

On Usenet, there used to be a tradition that when someone mentioned Nazism 
in a discussion, that discussion was declared over.
Martin Schwimmer does not do that, but he does reference Josef Stalin.

I hope we can have a discussion about what protection famous marks should 
have on the Internet without using this kind of argument.

                            Harald Alvestrand

At 21:35 13.12.99 -0500, Martin B. Schwimmer wrote:


>The Noncommercial Domain Name Holder's Subcommittee on WG-B has put forth a
>position paper on the protection of famous marks.  Reasonable people can
>differ on the protection of famous marks.  This position paper is not
>reasonable.  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.

Could we please have a discussion of the issues?


>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.  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.  The
>WIPO report illustrates what the NCDNHC paper was not - open-minded.  WIPO
>called for comments and addressed the most serious criticisms of its
>conclusions.

See Michael Froomkin's comments on how well these criticisms were addressed.

>   You may disagree with its conclusions but it was an open
>process and the reasoning is laid out.

As part of the process, I found it less open than this one.

>   Denying the existence of the WIPO
>report is not a part of an open process.
>
>Then there is the strawman argument - that a universally accepted
>definition of fame is required for the exclusion process to be implemented.
>  WIPO didn't think this was necessary - why does the NCDNHC?

WIPO thought it was necessary, and that WIPO should be the judge of it.
Please don't misrepresent WIPO's position.

>  Countries
>implement their best attempt at defining fame - why can't ICANN do the same
>when attempting to implement good business practices?  There is no
>universally accepted contract law either - and yet ICANN enters into
>contracts.
>
>But rather than work towards an appropriate local definition of fame for
>the DNS (as this list has at times attempted to do), the NCDNHC needs the
>"universality" strawman to make their "veto by treaty outcast" argument:
>
>         "While famous marks are set out for protection by the Paris
>Convention for the Protection of Industrial Property, this treaty has
>not been signed or entered into by some countries who use the
>Internet" and later "[ICANN should not] impose a new international law . .
>.on the countries which are part of the Internet but not a signatory to the
>industrial property treaties on famous marks."

I happen to agree with you personally on this argument; nobody has yet 
named a country by name that is not signatory to the Paris agreement. There 
should be 20-50 of them, depending on your "country" definition, but 
nobody's mentioned their names yet.
But like WG-B, the NCDNHC WG B subgroup tries for rough consensus, and 
there was rough consensus to advance the report as written.

>We now turn to the ".fame" TLD proposal.  The paper claims that its goal is
>to:
>
>"To address the concerns about famous marks with a new and
>uniquely technical solution:   the creation of a space in cyberspace
>for marks deemed to be famous."
>
>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.

Could we have a discussion of the issues, please?

>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, and
>you will dislocate something trying to contort your logic to state that it
>will.  Backers of the proposal have conceded that .fame will have no effect
>on activity in unrestricted gTLDs.  It is pure disingenuousness to put this
>forward as an anti-piracy device.

I believe "yes, and that's a feature" was my remark.

>A NCDNHC NC member now has the temerity to state that there is substantial
>support for the .fame proposal and that a new sub-group be formed (thus
>diverting even more resources from discussing the WIPO Report).  The
>declaration of "substantial support" glosses over the fact that trademark
>owners have shown no support for this proposal.  As in the case of B'zer
>B'jan, the subjects of the proposal see this for what it is - a sop.

Please note that the NCDNHC members are also Internet users, and will 
therefore be subject to (and more likely to be victims of) famous-mark rules.

>Finally, we turn to the mischaracterization of the law.  It has been said
>that patriotism is the last refuge of the scoundrel - on the Internet the
>last refuge may well be cloaking oneself in the protection of noncommercial
>speech.  THE NCDNHC simply ignores the fact that an exclusion of the type
>suggested by WIPO IS lawful.

Please make an argument, not a statement. According to which law?

>The NCDNHC paper states that:
>
>". . . the famous mark protection extended by the Paris
>Convention is a protection for "industrial property," also known as
>commercial property,  and does not speak to the delicate balance
>between noncommercial and commercial speech on the Internet"
>
>It is the NCDNHC which does not speak to the "delicate" balance.  The
>NCDNHC has been presented with the citation of cases which demonstrate the
>interplay of trademark law as applied to domain names, specifically U.S.
>cases such as the jewsforjesus, plannedparenthood and papalvisit cases,
>which cases hold that domain names in the form [mark].[suffix] are
>infringing regardless of whether the contents of the web site contained
>protectable free speech.

Could you please provide online references to these cases?
One problem with evaluating case examples given here is that without 
supporting documentation, we have to take the poster's word for what the 
arguments and findings of fact are for each case.

Note that http://www.domainhandbook.com/ seems to give facts of a few cases 
- the latest on the jewsforjesus.org case, dated May 1, 1998, indicates 
that it's not over at that time. However, it may have been denied an appeal 
hearing without that fact being noted on the website.

 From the same source, see ajax.com

>   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.  These cases make the same point over and
>over again - the speech is protected, the confusing use of a domain name is
>not.
>
>There is no attempt by the NCDNHC to reconcile, distinguish or critique
>these cases.  THE NCDNHC simply does not respond to the postings about the
>cases and does not even acknowledge that these cases exist in their paper.
>
>We know that the NCDNHC knows these cases exist - one of the authors of the
>NCDNHC paper participated in an amicus brief in the jewsforjesus case.
>
>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.
>
>In summary, the omission of a mention of the WIPO Report, the hypocritical
>"treaty outlaw" argument, the insincere .fame proposal and the consistent
>mischaracterization of the law - this is not what honest participation in a
>consensus-building process looks like.
>
>Reasonable people can differ on the efficacy of the exclusion process - the
>cost of the process, can it be implemented effectively, are there ways of
>implementing UDRP which will achieve similar results more easily - all
>these issues have at times been discussed on this list.  Maybe the
>exclusion is a bad idea.
>
>But to treat the NCDNHC position paper as something other than an attempted
>filibuster - belittles the efforts of the people of differing viewpoints
>who were working at some type of consensus.  It also belittles ICANN.

To treat the NCDNHC position paper as a filibuster attempts to belittle the 
members of the NCDNHC who participated in its preparation.
Thank you for your consideration.

>The individuals who participated in the WIPO process deserve better, this
>list deserves better, and so do non-commercial users of the Internet.

No comment.
--
Harald Tveit Alvestrand, EDB Maxware, Norway
Harald.Alvestrand@edb.maxware.no