Re: [wg-b] Revised IPC Proposal

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

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