Re: [wg-b] RE: opportunity to pre-empt, or license to infringe?

["Mark C. Langston" <mark@bitshift.org>]

On Fri, Apr 21, 2000 at 10:44:45AM -0400, James Love wrote:
> On Thu, 20 Apr 2000, Judith Oppenheimer wrote:
> > I replied that cybersquatting involves infringement of trademark rights and
> > is actionable.*
> > 
> > But speculation is legal and legitimate activity.  Trademark owners have no
> > legal right to infringe on speculators' activity.
> 
>    I work with a number of non-profit organizations that have never
> registered a trademark, and can't get the domains that they would like
> because the domains are held by speculators .  I personally would like
> to see policies that limit speculation on domain names, which is not a
> value added activity for society, in my opinion.
> 
>   Of course, this is made much worse by the artificial restriction on
> the name space.  Apparently all 3 letter .com names are already gone.  
> I don't know where this stands for .org, but I can't get any of the 3
> letter .org addresses I want (starting with cpt.org).

Jamie, while I respect your position and what you're trying to accomplish,
the DNSO was not formed to ensure that certain parties can "get the
addresses they want."  There will always be someone, somewhere, who
can say that they couldn't get a domain name they wanted, and for that
person, there will be all sorts of complaints and finger pointing and
"if only things were _this_ way" statements.

The DNSO should be making technical management decisions, not policy.
However, even if the DNSO had a mandate to create policy, that policy
should not be designed to favor or penalize any group or interest.
Intstead, it should only concern itself with establishing and
maintaining a functional naming system for IP addresses.

We don't need to go through the "I can't have the domain I want"
spiel with every person on the planet.  The only restrictions placed
on namespace (and I'm not saying I'm in favor of any) should be
enacted to ensure fairness and equity in the DNS system.  Setting
aside segments of namespace for particular interests is not fair, unless
all such interest who wish such treatment are allowed the same
treatment.

The IP lobby want the Sunrise proposal, setting aside large chunks of
namespace for mark holders.  CDT wants large chunks of namespace 
set aside for labour and other activist-oriented groups.  What are
we to say when, for example, the porn lobby comes and asks for .sex
or .xxx?  Do we turn them away based on assumed content?  What if
the Ku Klux Klan asks for .kkk?  What if all the fraternities and
sororities in the US ask for their trio of greek letters as a TLD?
Where do we draw the line?  Are we to become arbiters of taste and
content in namespace, or are we going to provide a framework within
which technical and managerial issues surrounding namespace are
explored and dealt with?

We're here to do a job.  I think Occam's Razor applies in a slightly
modified form with respect to namespace: The simplest set of rules is
usually the most correct.  This isn't, and should not become, a
legislative body.  Nor should it become some real-world version of
Nomic.  If anyone believes they've been wrongly denied a domain name,
US law and international treaty provide more than adequate remedies
for those people.  Yes, it may cost money to litigate, and yes, that
cost may be higher than arbitration, whose cost in turn is higher
than simply wheedling a proposal into namespace governance that
foavors your interest.  But in the end, the existing remedies are,
I believe, the best.  If someone believes so strongly that they
have a right to a particular domain name, let them demonstrate that
belief by proving it in court on in arbitration.  If they do, indeed,
have such a right, by and large they will end up on the winning side.
If not, then perhaps their belief was wrong.

Either way, we shouldn't be making decisions that amount to: "I can't
have what I want!  Rig the system so I can have the domains _I_ want!"

If you're deserving of an existing name, there are more than enough
ways to obtain that name from the current owner.  But they depend on
a judgment regarding the degree to which you deserve that name, and
they are executed on a case-by-case basis, considering the unique
circumstances of each case.  

If it were true that all [affinity group such as mark holders] were
deserving of [a class of domain names], arbitration and litigation
wouldn't be necessary.  Or, if necessary, would not require casewise
examination, lengthy deliberation, and high costs.  That arbitration
and litigation _do_ still proceed in this manner in such cases speaks
volumes about the apparent "need" that a group has for a class of
names.


-- 
Mark C. Langston
mark@bitshift.org
Systems & Network Admin
San Jose, CA