Re: [wg-c] Re: Importance of the Registry

[Milton Mueller <mueller@syr.edu>]

I've separated my response. The first part deals with the philosphical disagreement over the
role of property rights in the name space. The second message will deal with the Nominet
model and the concept of a "mixed" approach to new gTLDs.

Kevin J. Connolly wrote:

> >There is no difference at all [between the rationale for a TM and the reasons for a
> branded TLD], and this is precisely the reason why some of us want
> >to create space for exclusive gTLDs. The uniqueness of the TLD and the exclusive
> >right to administer the TLD extension "brands" a domain name.
>
> Calvin Klein did not have to get leave from anyone for his retinue to
> create a fragrance and apply his brand to it.  Anyone who gets a TLD
> has to get leave from whoever is the gatekeeper of the A-root in order
> for an entry to be created therein pointing to the new zone file.

Even if the assertion above were true, so what? I don't see why it prevents us from
realizing the benefits of a branded gTLD. In your terms, the "gatekeeper" should give
"leave." But it isn't really correct. Calvin Klein did have to get a formal recognition of
his property right from a trademark office(s). That process excluded others from coming
along and imitating it. It also excluded other, perfectly legitimate people from using the
letters CK in certain ways. The incorporation of some proprietary TLDs into the root is a
similar process.

> Assume that the New
> World was a true res nullius, unoccupied by sapient life.  There is still a
> degree of illegitimacy in the creation of  economic value by fiat and its
> arbitrary allocation to a favored few.  These problems can be avoided
> if the res nullius (the new namespace) is delegated under principles of
> stewardship.

So you *do* believe in global socialism wrt to land rights, then?Just joking. But haven't
you just reduced your own argument to the absurd? We have flourishing markets for real
estate and both worlds are better places for it. I shudder to think of what the economy here
would be like if the New World was managed entirely on the "stewardship" principle since the
16th century.

If you are concerned about the delegation of things of economic value by fiat, then auction
the right off and let ICANN capture some of the value on behalf of the public. In fact, an
auction would in my opinion be a great way to deal with the contention over .web. That is
what we did with radio spectrum.

<pause for Ambler reaction, which will be: you can't auction off my trademark>

But the deeper point is that all new forms of value at some point start by appropriation, by
fiat in some sense. From a societal perspective, who specifically benefits from that process
is much less important than that the process contributes to the value of the resource, and
it is allocated in efficient and beneficial ways over the long term.

> The namespace
> which it is capable of containing is part of the common heritage of mankind, and,as such,
> should not be appropriated for private gain.

Here we part company. People have said the same thing about land, radio, and virtually any
other significant resource. It doesn't change the fact that creating a market for exclusive
property rights has certain efficiency and investment benefits, and so society continues to
create such rights. Economies which do that flourish; those that don't fail.

Trademarks also reference a name space that is "part of the common heritage of mankind," but
we routinely create property rights in names -- to protect consumers from deception and to
reward the creation of value.

> This is why the very first
> value-laden policy elaborated by the gTLD-MoU is:
> "Section Two.  The following principles are adopted:
>    a.the Internet Top Level Domain (TLD) name space is
> a public resource and is subject to the public trust."

Quoting the gTLD-MoU as if it were scripture is not advisable as a way of building
consensus.

> The root is not like any of the zones, and sure is not like 60 acres of
> good land on the prairie.  And ultimately, while we spout and fume about
> this gTLD and that gTLD, what we're really fighting over is the control
> of the root.

No. We're dealing with who administers zone files and how they are administered. In other
words, we are dealing with 60 acres of land on the prairie. ICANN is the State or federal
government that shoots the gun and lets the homesteaders loose.

And I hope we all continue to focus on just how large the prairie is, and how that makes it
*easier* for us to solve the gTLD problem. Don't like those commercial TLDs? Fine. Go to a
shared one. There's plenty of room for them, and I have never uttered a word against
creating them, except and unless we are talking about imposing a specific business model on
everyone in the world, thus snuffing out diversity and experimentation.

--
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/