[wg-c] More on the property status of TLDs

[Milton Mueller <mueller@syr.edu>]

On the issue of "public resource" vs. "private property" here are some
premises I think we can agree on:

1) Trademark owners have (delimited) property rights in names.
2) Any individual can set up a computer that resolves a domain name.
The name space used by that computer is under the private control of
the computer owner, and as such is an extension of the ownership of
the computer. Those uses of names may be trumped, however, by the
rights claimed in 1).
3) The basic issue we on this committee are concerned with is which
TLD names get into the root zone administered by ICANN, and who
operates them.

4) Building on point 3), but moving into territory where it might not
be so easy to agree, I would go so far as to say that ICANN "owns" the
legacy root zone (or it will, once the authority is fully transferred
from the DoC/NTIA). By "ownership"  I mean simply that ICANN has the
right to decide what names go into it. It can use this as leverage to
decide who operates them.

5) We should also be able to agree with the proposition that the root
zone has special value due to network externalities--by which I mean
its collective recognition as the ultimate place to go to find out
where to resolve names that provide near-universal connectivity. So
there is an important change in status when a computer operator
mentioned in 2) above gets a name listed in the root zone.

We can thus think of ICANN as the administrator of a valuable asset, a
space with unique economic characteristics. It has multiple, sometimes
mutually exclusive proposals coming to it about what should be
admitted into that space. What registries should it admit and what
rights should they have?

6) The property rights of entities that ICANN admits into its root
space can run along a broad spectrum. At one end of the spectrum, The
registry has no rights; they operate a database at the whim of ICANN,
they have no exclusivity over the zone files, the registry is shared
according to terms and conditions set by ICANN. At the other end of
the spectrum, there is the model of proprietary registries who have an
exclusive right to administer zone files and who contract with
registrars on terms that they find suitable.

There are many places in between, and I think it is extremely
important to think of this as a spectrum, a range of choices, rather
than as a binary choice. It is also useful to keep in mind that no one
place on the spectrum is likely to be the "right" one for all
applicatons and times.

A useful analogy is a shopping mall. In admitting people into this
space, the mall owner typically offers leases of a specified length at
a specified rent. The relationship is not one-way. The value of the
mall depends on what stores are present as much as the value of the
store depends on being in the mall. Some leases are long-term, others
are short-term; some are expensive, some are cheap. The price varies
with market conditions.

From this it follows that ICANN cannot be cavalier or rigid about the
terms it offers registries for entry into the root, if it wants to
avoid eroding the value of its asset. It cannot, for example, say that
a right to operate a registry can be withdrawn at any time, for any
reason.  Nor can it demand a King's ransom for the right to be
admitted.

Finally, if one accepts premise 1) (that TM owners have property
rights in names) it is hard for me to understand why one would not
also accept the premise underlying branded or exclusive TLDs. Indeed,
it is a source of some befuddlement to me that many of the people on
this list who are arguing loudest and longest in favor of the
trademark owners' claims to reserve and protect names in the DNS are
also those most vocal against branded TLDs.

If the name space is a "public resource" then how and why can
trademark owners claim protectable rights in any domain name?  If
exclusive rights to names in the DNS *can* be claimed, then why can't
a registry operator establish such a claim by associating a TLD with
commercial services and branding it?

The contradiction is especially embarassing to those who support the
exclusion of "famous and well known marks" from the name space. That
is a form of name exclusivity, an extension of private property rights
deep into the name space. Certain names across all TLDs are reserved
on a global basis, regardless of commercial use or confusion, simply
because they correspond to trademarked names. How is it that some
people are willing to recognize this kind of a sweeping property claim
with no basis in existing law, but react in horror when someone
proposes a branded TLD, which is simply an extension of current
trademark concepts to registry services?