Re: [wg-c] Retraction of previous proposal

[Milton Mueller <mueller@syr.edu>]

Rita M. Odin wrote:

> >So what you're saying Rita, is that the issue is not one of .needing
> >to police the registry database, as Kevin's been arguing, but instead
> >the much more difficult one of discovering how the name is being used
> >over time. Correct?
>
> No, not correct.  Registration of a domain name invariably results in use of a domain name (unless the registrar is a cybersquatter intending to horde the domain name in an effort to extract payment from another party and/or frustrate the business interests of another party by preventing that party from registering a domain name that would be useful to it.)

Yes, Mark you are exactly correct. The issue is not whether use results, but the nature and effect of the use. Trademarks do not constitute ownership of character strings. There are many ways in which trademarked character strings can be used legally by someone other than the trademark owner. There are also identical strings that are trademarked by many different owners. Whether infringement is involved depends entirely on what you said: how the name is being used over time.

> >So having access to the registry databases isn't really necessary, >since
> >you could just employ a web-crawling program of some kind to >hunt down
> >web pages that may infringe.
>
> Once again, an incorrect assumption.  Access to the registry databases is essential to allow the legitimate owner of IP rights to enforce its rights against infringers and pirates.  If an infringer can hide its identity behind a claim of privacy, the infringer is essentially free from prosecution or lawsuit.

Again, let's be more careful with our statements. Whether someone is an infringer or not is *not known* until a judge makes a decision. The person hiding their identity may or may not be an infringer. If a judge determines that s/he is an infringer, orders can be given to release the information.

Let's apply the model to another medium to clarify what is being advocated here: What Rita is saying is that because telephone lines could be used to infringe IPR, then IP interests could legitimately ask telephone companies to monitor the packets coming out of everyone's line, and also impose a legal requirement that they have direct access to the personal account information of the person subscribing to the telephone line.