Re: [wg-review] Ownership and Holdership

[Jefsey Morfin <jefsey@wanadoo.fr>]

On 21:37 11/01/01, Roeland Meyer said:
> > 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.

Roeland,
I agree with both of you. With a simple reason:
- you hold a name because you (or others can use it: acctually you
   dont not type your own DN often, you visitors do). Than name can
   a DN or a TLD.
- you own what goes with it: your work, the image you gave, your
   TM, etc...

This is why the IDNHC is the proper naming for an SO Center of
Interest, and Joop was right to call the IDNO as such.

For example when Miles Marsh said he woud transfer the ".sys"
to me and we published our agreement the TLD was not the issue,
the issue was the past (assets and liabilities, and wehave not yet
signed because we jsut do not knwo what to write).
For ".biz" it is the: JandL owns the contracts with the users.

This being said, most of what Roeland writes is true, if you
consider that point. I would even say it is clearer.

Jefsey


>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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