Re: [wg-review] Bounced Message from Jon

["Chris McElroy" <watch-dog@inreach.com>]

Chris McElroy aka NameCritic

----- Original Message -----
From: "Kent Crispin" <kent@songbird.com>
To: <wg-review@dnso.org>
Sent: Tuesday, January 02, 2001 10:29 AM
Subject: Re: [wg-review] Bounced Message from Jon


> > Jonathan Weinberg <weinberg@mail.msen.com> wrote:
> > At 02:43 PM 12/29/2000 -0800, Kent Crispin wrote:
> > >there is no algorithm by which the
> > >representational weight of the various stakeholder communities can be
> > >weighed.
> >
> >          I'm not sure, Kent, whether you mean by this [1] that there is
no
> > way to compute how much representation each of the relevant stakeholder
> > communities *in fact* has on the NC, under the current system; or [2]
that
> > there is no way to compute how much representation each of the relevant
> > stakeholder communities *ought to* have on the NC.
> >
> >          My guess is that you don't mean [1], since that's transparently
> > wrong.
>
> You are correct, I didn't mean [1].  However, I believe you are quite
> mistaken when you say that [1] is transparently wrong -- you seem to be
> confusing "constituencies" with "stakeholder communities".  Here's an
> example to illustrates the error: suppose that we have a constituency
> that purports to represent some constituency (say, the "recreational
> users of the net constituency" (RUONC)).  Let's further say, however,
> that the nefarious Big Corporate ISPs have completely packed the RUONC
> with their employees, so all the NC representatitives of the RUONC are
> really representing AOL, Mindspring, and so on.  Therefore, the
> "representation" of the stakeholder community associated with the RUONC
> is zero.
>
> That is, in order for [1] to be "transparently wrong" you would have to
> answer the following question strongly in the affirmative:
>
>   Do the current constituencies well "represent" their associated
>   stakeholder communities?
>
> I submit that only in the case of the gTLD registry constuency can we
> actually make that claim: there are substantial number of registrars
> that don't participate in registrar constituency; there are substantial
> numbers of ccTLDs that don't participate in the ccTLD constituency, and
> of course the other constituencies the situation is even more obvious
> -- there are enormous gaps between the "stakeholder communities" and
> the "constituencies".
>
> >  The various NC members quite explicitly act as representatives of
> > their constituencies.  It's easy to count how much representation each
> > "stakeholder community" currently has:  three members for a favored six,
> > one for a seventh, zero for the rest.
>
> You give a simple cartoon of the real situation.  In fact, the interests
> of members of the different constituencies are extremely varied.  There
> is no reason, for example that a member of the BC would not be
> fundamentally aligned with individual domain name holders.  There is no
> reason, for example, that a member of the NCC would not be very
> concerned about their intellectual property (eg, the Red Cross is very
> aggressive in defense of its IP).
>
> In fact, the constituencies are very heterogenous, and cover a very
> broad range of interests.  So, the statement "there is no way to compute
> how much representation each of the relevant stakeholder communities *in
> fact* has on the NC, under the current system" is quite literally
> correct.
>
> > If you mean [2], I agree.  The problem is that absent such an
> > algorithm, the current system is incoherent.
>
> You agree, but it appears to me that the significance of that agreement
> escapes you:  [2] does not by any means imply that the current system is
> incoherent (though it might indeed be incoherent for other reasons).
> [2] is simply an isolated fact.
>
> To review: we agree that (in your words) "there is no way to compute how
> much representation each of the relevant stakeholder communities *ought
> to* have on the NC".  Given that, then, there is obviously no way that
> we can determine appropriate representation for different stakeholders.
> In fact, not only can we not compute how much representation the
> relevant stakeholders should have, we don't even know for sure who the
> relevant stakeholders are.
>
> It therefore follows that the idea that the DNSO should be some kind of
> representative governing body is fatally flawed from the very beginning.
> It isn't a representative body, and it *can't* be.
>
> Thus the admonition in the white paper that ICANN should be
> "representative" can not be taken to mean that ICANN has to duplicate
> the processes and structures of representative government, and no one
> who understands the issues thinks it should.  "Representative" should
> be understood more in the sense of "representative sample" rather than
> "elected representative".
>
> It is true that many people operate under the presumption that ICANN is
> supposed to be a representative government, or an Internet Democracy.
> But these people are at best mistaken, and at worst delusional.  What
> ICANN is supposed to be is a corporate elaboration of the role that Jon
> Postel played.

They may have the role but they certainly don't have the same philosophy or
purpose from what I have read. Thats partly why we're here.
>
> > The current system features a
> > Names Council whose members vote, and whose votes are tallied.  It
assigns
> > seven stakeholder groups the privilege of selecting representatives, and
> > assigns the number of representatives for each.  It is defensible only
if
> > we believe that six specifically defined groups *ought* to have a
> > particular quantum of representation, with a different amount (soon to
> > change) for a seventh, and none at all for anyone else.
>
> Nonsense.  And a complete red herring, as well -- you are lost in the
> snare and delusion of thinking of the NC as representative government.
>
> The value or utility of the system does not depend on our beliefs about
> who ought to be represented, nor is it particularly sensitive to the
> makeup of the constituencies, as long as there are several, and they are
> genuinely different.  If there were an individuals constituency, for
> example, things would not be significantly different -- the balance of
> the votes might shift a little bit, but nothing at all dramatic.

Any shift would be progress and the current constituencies are not genuinely
different. TM holders as one thing and businesses as another and ISPs as
another and Registrars as another are not genuinely different when many fit
into the "All of the Above" Constituency.
>
> The problems with the current system are NOT that it is
> unrepresentative.  The problems are much more mundane -- the current
> system doesn't accomplish WORK.
>
> And in fact, even from the perspective of the "representative
> government" delusion, the NC is not bad.  There are complaints that the
> NC seems dominated by business interests.  Guess what? 80% of domain
> names are in fact registered for business reasons -- it is no
> coincidence that the vast growth in the domain name space is in .com.
> The number of domains registered for purely personal reasons is growing,
> but still, that number is quite small in relation to the number of
> business domains.

That is clouding the issue. An individual who is trying to start a small
business on the web, has no huge VC if any at all is lumped into the same
catagory as GM, AT&T, and IBM by your post. You talk a lot about who does
and doesn't understand the issue, then by this paragraph tell me that you
may not understand this issue. I have filed some business domains. Does that
mean the interests of AT&T are the same as my own? No it does not. It is to
their interest to stifle competition. Those who already are large do not
want to see individuals come along with a better idea and compete with them.
I don't think by filing a business related domain name I am already
represented because they are. 80% of domain names are filed in dot com
because thats what people remember and it's what you go to as a default in
most browsers when you type in a word. It has nothing to do with business
growth on the web itself. It has to do with the value in domain names. .net
is worth about 20% of what a dot com is worth so your analogy is entirely
flawed.

Your comparison of number of disputes to total domain names filed is also
misleading and not the focus of the study we read from Milton. The
comparison was made as to the total number of disputes not the total number
of domains filed. 80% of those involving TMs vs domains have been found for
the TM holder. That in no way describes a balanced arbitration system. The
study also shows how TM law has been misused to accomplish this ratio on
behalf of the TM holders.

As a suggestion, you might not want to say that because someone disgrees
with your point of view that they don't understand the issues. It could be
repeated back to you in this very instance. Having reviewed a huge number of
actual cases myself, I understand where these obvious violations have
occurred. Read up on crew.com, Barcelona.com, and others and if you still
have that point of view then I'll just agree to disagree with you. A name
like Barcelona.com doesn't inherantly belong to the city of the same name. I
don't know about you, but I pay my taxes and the city I live in is more mine
and the other taxpayer's property than it is the city's property. Generic
words are not supposed to even get approved as trademarks and the dot com
isn't supposed to be a part of the actual mark, yet this has also been
allowed to occur. It's ridiculous and in Postel's view domain names were not
supposed to represent trademarks in the first place. I can see where
someone's reputation may really be hurt in an instance where a domain name
is used illegally or redirected to a porn site, etc., but something like
Housewares And Gifts getting HousewaresAndGifts.com from the domain holder
is stretching trademark law beyond where it was intended to go. These
companies have no more right to generic words than you or I do, but because
some individuals in this country saw that value before they did they use
this political process to steal what they didn't think of first.

If I misread your post point it out, but by reading it one would think that
you don't think this problem is a large or important one. If not maybe you
won't want to participate in the IDNH discussion. I wouldn't want to waste
any of your time on these unimportant issues.

>
> Like it or not, in the realm of domain names the net is overwhelmingly
> commercially oriented, and therefore a heavy presence of commercial
> interests in the DNSO is inevitable AND morally justified.

Wrong again. They are not morally justified in the actions they have taken
nor are they morally justified to take domain names that don't belong to
them and are not even confusingly similar to the TMs. Again crew.com. Read
it. Also domain names have been given to companies who have just filed for a
TM, have not received it yet, and filed the TM AFTER the dot com was already
filed. Their company didn't even exist when the domain name was filed. How
do they call it protecting intellectual property when it wasn't even their
intellectual property first? If you agree with their actions then I have to
ask you what color is the sky in your world? I apologize if that sounds like
a personal attack on you. it isn't intended that way, but you brought up
morals and applied them where none exist.

>
> And, in fact there is no evidence that the interests of noncommercial
> entities or individuals are being seriously and specifically damaged; as
> Milton points out in his study, the number of udrp cases is tiny
> relative to the number of domains registered, and the number of "really
> bad decisions" is actually *very* small, relative to the total number of
> domain names registered.

There is a huge amount of evidence. Where have you been? Maybe participating
in too many of these discussion groups hasn't given you the time to see
what's going on outsuide of them and again that was not the focus or result
of the study. It was related to the number of total disputes not number of
domain names filed.

I have a quote for you here too. it describes our current system and
leadership. it's by someone whose philosophy they seem to have adopted.

 "The people who vote decide nothing, the people who count the vote decide
everything." ~ Joseph Stalin
>
> --
> Kent Crispin                               "Be good, and you will be
> kent@songbird.com                           lonesome." -- Mark Twain
>


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