[wg-review] Ownership and Holdership

[Roeland Meyer <rmeyer@mhsc.com>]

> From: DPF [mailto:david@farrar.com]
> Sent: Thursday, January 11, 2001 10:04 AM
> 
> On Thu, 11 Jan 2001 13:31:42 +0100, Robin Miller wrote:
> 
> >> The 200 odd members of the CA/IDNO support the term owners.
> >
> >I don't support the term. I guess that makes it 199 odd 
> members. I remember not
> >being alone in my opinion. So strike a few more from the 199.
> 
> For the record I prefer the term holder to owner also (and am a member
> of IDNO).  Domain Names are not sold by registries because if they
> were that would imply registries owned the names in the first place
> before selling them.

For the record, I agree with both of you. That said, not for the same
reasons. Specifically, David, I disagree with the reason that you gave. If a
Registry owns a TLD, that means that they have rights to all derivitive
works, including ALL sub-domains. Importantly, they have delegation
authority. That is simply the way that the DNS works.

I forsee a mix of ownership and holdership. The only entity that can't
really own itself is the root registry. Simply because there isn't much to
own. Unlike mathmatics, there isn't a <null> placeholder, such as zero(0)
for names. There is no linguistic concept of something that isn't named, yet
exists. IOW, while we may have a meta-concept for a root registry, the
linguistic implementation is not extant. Yes, that makes it difficult to
discuss and I submit that this is the primary reason people get confused
about these issues. I further submit that, this is the reason that the law
has trouble with it as well.

However, TLDs are more towards normal experience. Once it is named, it can
exist, and once it exists, it can be owned. The primary difference, between
"can" and "may", is the difference between ability and authority. I see
those as distinctly separate issues. Using arguments for one, against the
other, is confusing and counter-productive, IMHO.

Earlier I submitted argument that they can either lease sub-domains or sell
them outright. There are severe legal problems if the registry only leases
their space (ICANN model), which we have all been experiencing here.
However, if a registry (at any level) owns their space then they can do some
significant good thereby. For one thing, they would have proper legal
authority to police it. Alternatively, when a registry sells ownership, of
part of their space, to another registry, they in fact relinquish control,
to that sub-registry. This creates a nightmare of legal problems and is
probably why it isn't done, much.

I submit that, all Top Level Domains are owned by their creators, on the
theory that creation confers defacto ownership. There are various mechanisms
to enforce this, including patents. OTOH, root level registries cannot be
owned because they do not exist. At most, they are a service, like a
directory. While the implementation may be copyrighted, the entity can't
because there is no name for it. In fact, it cannot be named, being an
entity wholly outside of the name space. This also makes it duecedly
difficult to patent.

For all levels below that of the TLD, it is the sole descretion of the TLD
operator, whether or not to sell or lease sub-domains. In both cases, the
relationship is contractual. If ownership is sold then ownership control is
also delegated. Depending on the jurisdiction, this may have various
implications beyond the contract. However, if the sub-domain is only leased,
with the TLD operator retaining ownership control, then there are no
secondary issues. Furthermore, the lease-holder may not sell ownership of
derivitive sub-domains, simply becasue they do not have ownerships to sell.
The sub-domain operator only owns a lease and even sub-letting may be under
the control of the TLD operator (the actual owner), under terms of
delegation.

Taking all of the above into account, all of the TLDs, in the current
/USG/DOC/NTIA/ICANN root system are owned by the /USG, since the USG created
them, via IANA, even the ccTLDs. This is re-enforced by recent judgmental
decisions, case law, and legal opinions. As much as we may rail against the
concept, none of us owns our domains, we only lease them from delegated
authorities. Some of us are even further removed, from ownership, because
they have purchased their lease through a re-seller/registrar (this is the
main reason that MHSC deals directly with NSI, for USG leased domain names).
IMHO the issue of ownership, in the ICANN context, is moot. I submit that,
if you actually want to "own" a domain then you find a TLD operator willing
to sell you ownership rights to a sub-domain or become a TLD operator
yourself.

Given the above, the URDP, as heinous as it is, is only enforcible because
the TLD operators have directed their agents to abide by UDRP decisions.
Since the TLD operator owns their name space and has not sold ownership
rights under it, they can revoke the lease, at will. That they pretend to
paint it over with a UDRP color, is almost irrelevent. The "taking" isn't
really a "taking" because it wasn't a "given" in the first place.

I suspect that, if most dot-com business investors new what sort of
quick-sand their investment was really built on, that it would hasten the
current deflation of the internet economy. IMHO, the UDRP is bad for
business, in general. It raises the risk-factors unacceptably.

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