[wg-c] Re: IP/TM Concerns & New GTLDs

[Milton Mueller <mueller@syr.edu>]

Let me dispose of the silly and diversionary arguments so that we can get to the real ones.

Myth 1: A large number of new TLDs must be taken off the table because it is not politically
feasible.

Reality: ICANN does not need political approval or support from any external entity to add
new gTLDs to the root. It was explicitly given the authority to make that decision by the
White Paper. It is not a legislature. Its Board members are not subject to recall. It cannot
be sued for adding new TLDs. It will not lose money if it adds new TLDs.
If the preponderance of this Working Group agrees that it is good to add 500 new TLDs, and
the Names Council passes it, and ICANN's Board ratifies it, then 500 new TLDs will be added.
All this WG has to worry about is what is good policy.

Generally, when someone tries to pre-empt debate by saying that something is not feasible
it's because they would lose the argument on the merits. Let's debate substance, not make
guesses about political outcomes.

Myth 2: We can add a very small number now and perhaps lots more later, and that is a nice
middle ground that satisfies both advocates of new TLDs and the TM/IP interests.

Reality: It's just as likely that the TM/IP interests will see any additional TLDs beyond the
small number as a threat, and put up the same opposition later. It's also possible that the
people who are now advocating a small number now really belive in a small number permanently.
Look at how long it has taken to get this far. Is it feasible to advocate starting all over
again in a year?

Myth 3: The lobbying of the TM for restrictions on the name space really does represent true
and legitimate concerns about intellectual property protection.

Reality: One must carefully distinguish between the public interest in protecting investments
in IP, and the short-term interests of existing IP holders as construed by their IP lawyers.
The public interest is to protect names from being *used in commerce* in ways that deceive or
confuse customers. The IP lawyers, on the other hand, are arguing that mere registration of a
name, regardless of how it is used, regardless of whether it confuses or deceives, and
regardless of whether it is even visible on the Internet, must be protected. That position
bears no relationship to the policy rationale for IP protection. It is simply a way for TM
holders to shift policing and enforcement costs onto someone else.

The TM/IP position probably isn't even in the long term interest of IP holders. You may
recall that the IP interests tried to ban the VCR on the grounds that VCRs would undermine
copyright protection in movies. Guess what? Fifteen years later the motion picture producers
make more money on VCR-related sales than they do from theatrical releases. One could go on
with historical examples of this sort, from copying machines to the first attempts to put
movies on TV, to the current dispute over MP3.

Fact is, legitimate IP rights are not under any serious threat, and the emergence of free and
open markets in new media technologies has without exception ended up expanding the market
and developing new ways for IP creators to make money.

--
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/