Domain Name Lessons from Napster - CircleID

Domain Name Lessons from Napster:

I first outline a brief history of free file-sharing technology, then draw some general and domain name lessons, then outline the what, how, and why that make your activism effective and necessary.

Music Download Background

Napster was the first online music file-sharing service and was created by Shawn Fanning in 1999 while he was attending Northeastern University in Boston. The service, operating under the domain name napster.com, allowed people to easily share MP3 format music files with each other, thus leading to the music industry's accusations of massive copyright violations. Grokster, a similar technology, was created in 2001. However, the original Napster service and Grokster were shut down in 2002 and 2005, respectively, by court orders resulting from music industry lawsuits.

Sensing the vulnerability of Napster's centralized technology, Niklas Zennström, Janus Friis, and Priit Kasesalu (the team that later created Skype and Joost) launched Kazaa in March 2001. With Kazaa, there is no central server: Tom in Berkeley directly accesses Jose's computer in Mexico for a Bob Marley song. Within twelve months, more than 250 million copies of Kazaa had been downloaded. Kazaa's revenue, however, came from centralized selling of ad space on its downloaded software. Thus, although there were no centralized computers to host the songs, the ad revenue was centralized.

With legal pressure from the music industry, Kazaa, based in the Netherlands, was sold to a company based on the South Pacific island of Vanatu—beyond the reach of the U.S. and European legal systems. After Kazaa was chased out of Vanatu, an unknown hacker erased the parts that served ads and distributed the new software version online as Kazaa Lite (also known as K+), thus developing an even more decentralized technology. Now millions began downloading K+. A similar free music-sharing software is eMule, a descendant of eDonkey that is more decentralized and open source than anything anyone in the music industry had seen.

Reflecting the general hunger for privacy and secrecy, Share is the name for a closed-source P2P application being developed in Japan by an anonymous author.

General Lessons

1. Because Napster and Grokster were centralized, legal action against them could succeed. A decentralized system is far less vulnerable.
2. Fighting Napster only benefited lawyers, as free download continues.
3. Becoming decentralized and going underground diminish return to software developers but increase the benefits to users/violators.

Domain Name Industry

The domain name industry is decentralized and atomic in that anyone from anywhere in the world can register a domain name, keep the ownershp name and address private, and host it from a country where the U.S. and European legal systems don't apply. Thus, legal action will only drive domain owners further underground.

By shifting underground, domain name owners would:

1. Become hard to track. A cooperative IP regime, on the other hand, reduces incentives to go underground and thereby makes content and brand violations easier to control. Domain owners are more likely to cooperate with a trusted third-party monetization entity than with brand owners.
2. Increase domain tasting of brand names to cover any additional cost from moving further underground. On the other hand, under a cooperative IP regime a cutoff date can be assigned to eligible domain names, reducing any incentive to register brand domain names under the umbrella of a cooperative regime.

What can be done?

The domain name industry should get the message out to Internet users and brand owners that:

1. Indiscriminate legal action exasperates the problems associated with the use of brands in domain names.
2. A solution cannot come only from the side of the domain name industry; a cooperative solution is imperative.

The domain name industry is serious about fighting illegal use of brands in domain names.

How should our industry react?

1. Initiate media campaigns.
2. Openly discuss solutions in domain name conferences, as they are also attended by the media and brand owners.
3. Lobby Congress through the Internet Commerce Association (ICA) and domainer activism.
4. Discuss the problem and possible solutions in domain name forums and other relevant forums.
5. Take action against current monetizers that continue sponsoring obvious domain name violations.

Why Take Action?

Without action:

1. Industry can face tough unwarranted legal restrictions such as the Anti-Phishing Consumer Protection Act of 2008 (APCPA).
2. Domain name values would drop.
3. Internet user experience is diminished for which our industry is blamed.

Nevertheless, action will send a clear signal to registrants under future TLDs that the industry will not tolerate such bad behavior.

Concluding Remarks

Indiscriminate legal action by brand owners against those who register domain names that incorporate their brands can backfire by driving further underground domain name registration and Web site-hosting.

Our industry can and should take proactive measures to limit or prevent such consequences. A cooperative IP regime between brand and domain owners is a viable solution.

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More under: Domain Names, Law

June Court Decision Detrimental to Domaining Practices - Circle ID

June Court Decision Detrimental to Domaining Practices:

In a June court ruling, domainer Navigation Catalyst and registrar Basic Fusion lost a cybersquatting lawsuit to Verizon.

Verizon California, Inc. v. Navigation Catalyst Systems, Inc. [PDF], 2008 WL 2651163 (C.D. Cal. June 30, 2008). The Justia page. A page with some of the early filings.

This is an extremely interesting and potentially precedent-setting case regarding domaining and domain name tasting. The court condemns both practices, leading to a preliminary injunction against the domainer and its registrar based on the Anti-Cybersquatting Consumer Protection Act (ACPA). As far as I can recall, this is the first time that a domainer has lost an ACPA lawsuit in court, and it provides an important data point confirming that domaining can be cybersquatting (a previously unresolved issue). I also believe that this is the first time a domain name registrar has lost an ACPA lawsuit. Although the court wasn't asked to assess damages (it was just an injunction request), it's clear from the strongly worded opinion that Verizon will get paid if the case gets that far. As a result, this is a major loss for domainers and might very well force them to change their practices.

The defendants are Navigation Catalyst, a domainer, and Basic Fusion, its registrar. Navigation Catalyst engaged in some common domainer practices, including:

• high volume automated domain name tasting. Many of the registered domains have nothing to do with anyone's trademark, but some were typographical error versions of Verizon's trademarks (allegedly, nearly 1400 were variations of Verizon's trademarks)
• trademark "scrubbing" of domain names during the tasting period (both an automated blacklist and a manual review)
• disabling ads on any challenged domains and offering to transfer those domain names to the trademark owner

Despite the scrubbing, Navigation Catalyst registered and kept 126 domain names that Verizon alleges infringe its trademark. Navigation Catalyst also tasted nearly 1300 other challenged domains, and as the court points out, made some money from those domains during the tasting period.

Navigation Catalyst's main defense is that it merely reserved the domains during the tasting period instead of "registering" them (the ACPA statutory requirement) because they hadn't paid for the domains prior to the end of the grace period. Not surprisingly, the court is completely unimpressed with this sophistry.

Further, the court determines that domain tasting is a bad faith intent to profit under the ACPA:

It is clear that their intent was to profit from the poor typing abilities of consumers trying to reach Plaintiffs' sites: what other value could there be in a name like ve3rizon.com? Further, the sites associated with these names often contained links to products directly competitive with Plaintiffs' cellphone and internet businesses, potentially diverting consumers who would otherwise have purchased goods or services from Plaintiffs away from Plaintiffs.

Finally, the defendants tried to argue that Verizon had unclean hands because of Verizon's monetization of wildcard traffic in its FIOS service. Despite some pretty apparent duplicity on Verizon's part, this argument also fell on deaf ears.

While this is a big loss for the domainer, it's a shocking ruling against the registrar. After all, the ACPA specifically limits injunctions against domain name registrars (see 15 USC 1114(2)(d)(i)(II)), and the court did not discuss this section at all or otherwise why an injunction against the registrar was appropriate. I suspect the registrar should be able to get the court to clarify or reconsider its ruling if it asks.

It will be interesting to see how this ruling affects the domainer industry. There is absolutely no good news for them in this ruling. This court rejected the standard risk-management that domainers claim protect them from cybersquatting liability. Further, the big win will only encourage Verizon—already one of the most aggressive plaintiffs against domainers—to keep suing, and it might spur other trademark owners to join the party. Although a single ruling like this often doesn't change an industry overnight, I wouldn't be surprised if we look back in a couple of years and point to this ruling as the beginning of the end of standard domaining practices circa 2007-08.

Intellectual Property Rights Act of 2008 - Trademark Blog

Of course, there are no sanctions against intellectual property holders for overreaching, reverse domain name hijacking, ignoring fair use provisions, etc. etc.

Intellectual Property Rights Act of 2008:

Counterfeit Chic: Senate Considers Enforcement of IP Rights Act of 2008:

Among the bill's additions to existing law are the following:

Authorization of the Attorney General to bring civil, not just criminal actions -- a potential benefit to intellectual property rights holders who now have to file such lawsuits on their own dime;

Enhanced penalties, including doubled statutory damages for counterfeiting (to $1,000 to $200,000 for use of a fake trademark and to $2m for doing so willfully);

New forfeiture provisions for property used to violate intellectual property rights -- like that car used to transport counterfeit handbags or a computer used to download music;

More enforcement resources and personnel at the local, national, and international levels, including placement of IP law enforcement coordinators in hotspots overseas;

and

A federal Intellectual Property Enforcement Coordinator, a.k.a. a Copyright Czar.

So much for "bad faith" being required under the UDRP

Once upon a time in Narnia, a little Scots boy lost a battle with corporate lawyers ? - The Scotsman:


AN 11-YEAR-OLD boy was last night ordered by a court to hand back his birthday present ? a Narnia-based website address ? after one of the biggest legal firms in the world said it belonged to its multi-millionaire client.
Comrie Saville-Smith, from Edinburgh, an avid fan of the CS Lewis novels, was given the domain name narnia.mobi as a gift by his parents after it became available online.

But yesterday the World Intellectual Property Organisation (WIPO) in Switzerland ruled in favour of New York-based law firm Baker & McKenzie, representing Lewis's estate, that the name belonged to its client.

Last night Gillian Saville-Smith, Comrie's mother and a writer, described the decision as a "scandalously one-sided appraisal of the evidence" and added: "We are shocked by the decision. We put up a spirited fight because we wanted to prove that you do not have to hand something over just because someone richer and more powerful tell you to do so."

The family's international legal battle began in April, when they received an unexpected and irate telephone call from the US lawyers demanding they hand over the domain name and threatening legal action.

The Saville-Smiths refused and rejected the offer of a refund for the cost of the site, then another offer asking them to set their own price for the address.

Mrs Saville-Smith and her husband, Richard, a charity adviser and accountant, had paid £70 for the domain name from the internet registration company Fasthosts, keeping it as a surprise for their son's 11th birthday to coincide with release of the film of the second Narnia book last month.

They then received a 128-page legal document before the case went before the WIPO.

Responding to yesterday's judgment, Mrs Saville-Smith continued: "This decision by a one-man panel, supposed to be impartial, allows a multi-million-dollar company to seize a domain name purchased entirely legitimately by ourselves which has not been used in any way improperly or illegally.

"We provided clear statements and evidence to prove we had not profited, nor sought to, from this domain name ? yet these statements and evidence have simply been ignored.

"Our lawyer has presided over 80 World Intellectual Property Organisation panels. It is clear from the judgment that the panel had pre-decided to award the decision to the CS Lewis Company.

"There was absolutely no evidence of a 'bad faith' registration put forward by the CS Lewis Company's lawyer's, which was required by the WIPO rules to find against us.

"Justice has not been served, and instead the interests of corporate power and money have wrongly triumphed. 'Narnia' had great meaning before its huge commercialisation in recent years and this judgment effectively says money, not the truth, is all that matters now regarding CS Lewis's magnificent fictional kingdom ? despite the values and spirituality that originally lay behind it."

The Saville-Smiths said they could not afford to continue the legal fight.

Stranger than fiction? How the tale unfolded

30 APRIL: Law firm Baker & McKenzie calls and demands that the Saville-Smiths hand over the domain name.

5 MAY: Mr Saville-Smith writes to firm: "You seek an amicable settlement, but in your first contact you threaten my wife with legal action."

8 MAY: Law firm e-mails: "Please advise whether you would be willing to transfer the domain name to CS Lewis Pte Ltd."

8 MAY: Mr Saville-Smith replies: "I am not infringing their trademark, so I see no reason why I should to accede to your request."

Later that day the law firm contacts the family, saying: "What would you consider a reasonable offer?"

9 MAY: Mr Saville-Smith writes back: "We don't want to sell the domain name, as it is a special present for a ten-year-old boy."

28 MAY: The family receives a copy of a 128-page legal complaint filed with the World Intellectual Property Organisation in Switzerland.

ICANN Takes First Step to Becoming a Global Content Regulator

ICANN Takes First Step to Becoming a Global Content Regulator:


There has been wide coverage of ICANN's decision this week to adopt a new process for creating new global Top Level Domains (gTLDs). Publishing a clear, transparent and objective process is thought likely to result in a considerable expansion of gTLDs?although nobody really knows whether this means "quite a lot" or "many thousands?.
The decision endorses a 2007 report from GNSO Council, an ICANN structure that makes recommendations to the ICANN Board on gTLD policy.
Less attention has been given to one of the new tests ICANN will use when considering whether to approve a new gTLD, contained in GNSO's sixth recommendation:
Strings [meaning, new top level domain names] must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.
The report goes on to amplify on what it means by "generally accepted legal norms relating to morality and public order":
Examples of such principles of law include, but are not limited to, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination, intellectual property treaties administered by the World Intellectual Property Organisation (WIPO) and the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).
Quite why intellectual property is included as an issue of "morality and public order" alongside the Universal Declaration of Human Rights isn't explained, and probably owes more to the lobbying power of the American music and film industry associations than anything else. That aside, not everybody is comfortable with ICANN making decisions on "morality and public order".
ICANN Board member Wendy Seltzer speaking for the At-Large Community (ALAC), that represents ordinary end users, commented:
[ALAC] expressed concern that putting these criteria into the gTLD approval process, even as opportunities for objection, injects ICANN into the business of making morality and public order decisions, or injects that into ICANN's processes in a way that, as ALAC put it, debases the ICANN process. And at-large does not want to see ICANN put into the business of adjudicating or even delegating the adjudication of morality or public order or community support. And so we hope that in implementation, these criteria can be kept sufficiently narrow so that they are both administrable and understandable and so that they do not involve ICANN, the organization, in making, or allowing to be made, determinations about any claim to generally accepted morality principles.
ICANN Board member Professor Susan Crawford agreed, going on to say:
[N]either national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses.
[...]
This wasn't done out of enthusiasm for the free market alone. The idea was also to avoid having sovereigns use the Domain Name System for their own content, control, desires. To avoid having the Domain Name System used as a choke point for content. Recommendation 6, which is the morality and public order recommendation, represents quite a sea change in this approach, because the recommendation is that strings must not be contrary to generally acceptable legal norms relating to morality and public order that are recognized under international principles of law. That's the language of the recommendation.
Now, if this is broadly implemented, this recommendation would allow for any government to effectively veto a string that made it uncomfortable. Having a government veto strings is not allowing the private sector to lead. It's allowing sovereigns to censor.
In the formal discussions, these issues are mainly debated in the abstract, but two key examples are bandied about in private: .jihad (which even the anti-censorship USA seems keen to prohibit) and .nazi (which is an example dear to the hearts of some European governments with strict anti-Nazi laws).
Civil libertarians supporting Susan Crawford's line argue that if governments are able to pressure ICANN into prohibiting .jihad (which has perfectly non-violent meanings in Islam as well as the terrorist connotations it has recently acquired in the West), then can a prohibition on .falun-gong be far behind?
Traditionalists among the Internet technical community might be less impressed with the cry to protect freedom of expression in top level domains, arguing that domain names?let alone top level domain names?are intended as identifiers in an addressing scheme, not as a medium of expression at all. However, even on this analysis there is cause for concern about the "morality string criterion"
Is it possible for a short phrase such as would be valid as a top level domain name to constitute an incitement to violence, or other generally accepted breach of public order, in and of itself? Does it not depend on how the domain is used? Does the objection to .nazi lie not so much in its identification of content that might relate to Nazi ideology and in history, but that it might be used by people sympathetic to the ideology?
Whether or not it is possible for a domain to inherently infringe principles of morality and public order, doesn't such a rule invite ICANN to investigate how such a domain might be used in any case? Surely it is inconceivable that ICANN would not consider the likely use of a domain. Is such an invitation a good idea? Do we really think ICANN is well equipped to perform this role?
If we accept that ICANN should consider the likely use of a top level domain, and weigh that against principles of morality and public order?not to mention intellectual property law?before deciding whether such a domain should exist, why should it stop there? Why shouldn't ICANN require the registries of gTLDs (including .com) to do the same at the second level? ICANN can impose terms on such registries by contract; the only thing that restrains it is a view that this is not ICANN's proper role or purpose. If we accept the principle that ICANN can adjudicate globally "generally accepted legal norms relating to morality and public order", why not require gTLD registries to enforce these principles at the second level? And why stop with new domains: wouldn't actual proof of "infringing" use be even more damning than speculation about how a new domain might be used in the future?
The string criteria debate may attract less attention than the creation of new TLDs, and may not immediately affect as many people as the introduction of Internationalised Domain Names. Nonetheless, history may yet come to view this as the watershed moment when the world first acquired a global Internet content regulator.
This article was cross-posted from the LINX Public Affairs blog

Launch of .PARIS - Circle ID

Launch of .PARIS:


Yesterday, hundreds of sweaty ICANN attendees put on their best clothes and braved the crush of the rush hour metro on a very hot day to crush together for the ICANN gala at the overwrought Hotel de Ville (city hall) in Paris.
Most of them missed an interesting announcement.
I arrived an hour late, but even so food and drink were not yet served (not even water), and everyone was in desperate need of provisioning. The dull roar of heat-induced complaining drowned out the dignitaries making speeches at the far end of the hall.
Anyone who has been to an ICANN meeting knows that it's free to attend, and all the events are free as well.  If you're smart, you can get free food and booze most evenings, as well as nibbles during the coffee breaks (which makes up for the hotel bar prices: 12 Euros for two small bottles of Perrier, for example).  ICANN is right to always profusely thank the hosts for footing the bill, and the Paris meeting, sponsored by AFNIC (the French registration authority) and the Mairie de Paris (city of Paris), among others, did a very good job for the most part.
So it seems the height of ingratitude to jabber while various luminaries, barely audible, heaped fulsome praise on one another. But jabber they did, and most probably missed the announcement that the mayor's office was supporting the launch of .PARIS, headed by Sebastian Bachollet of ISOC France, which will have technical assistance from AFNIC. (AFNIC's position on TLDs under its sway is baffling, but more on that in a later article.)
The inhabitants of Paris consider themselves a breed apart from the other denizens of France, and in this Parisians exactly resemble New Yorkers, Berliners, Londoners, and other citizens of their country's most prominent city.  And, to my mind, that's the key to success for a geographically-based TLD?a feeling for the place (or language, or cultural identity) that makes people want to proudly display their affinity, and which will result in domain names that are actually used on the web, and not just filled up with annoying parking pages.
Congratulations .PARIS.
We will see many more?

An Open Access Success Story, Just in Time for CALI

An Open Access Success Story, Just in Time for CALI:

I’m traveling to Baltimore tomorrow, where I’ll be speaking later this week at UMD, one of the few law schools that can claim to be older than my own. The occasion is this year’s CALI Conference for Law School Computing, and I’ll be delivering an updated version of my talk on the open access movement.

As it turns out, I’ll also be delivering an unexpected bit of good news. The open-access project I blogged about here last October has yielded some impressive results. The project involved scanning and proofreading the House Judiciary Committee’s Report on the landmark Copyright Act of 1976. To my knowledge, the House Report has never been freely available online — a keenly felt omission, given how frequently United States courts in copyright cases rely on the Report as an aid to construction of the (frequently unilluminating) statutory text.

That problem has now been remedied.

Working in irregular bursts over the last eight months, volunteers at the English-language Wikisource project (a sister site of the much better known Wikipedia encyclopedia) have proofread all 370 page scans from the original House report, and the results have been stitched together to form a single document: Copyright Law Revision (House Report No. 94-1476). As the accompanying color-coded chart reveals, most pages of the report have been proofread by at least two different users, and the rest should be finished within a few weeks if current trends continue.

Here are just a few reasons why the Wikisource version of the House Report is the best now available anywhere.

• It’s free. Like all U.S. government works, the text is in the public domain. And Wikisource, unlike proprietary database vendors, doesn’t purport to limit your freedom to copy or reuse the public-domain texts that are hosted on the site. If you look up the exact same report on Westlaw, for instance, you’ll find this rather forbidding warning:
  
  

  ©2008 Thomson/West. Copyright is not claimed as to any part of the original work prepared by a U.S. government officer or employee as part of that person’s official duties. All rights reserved. No part of a Westlaw transmission may be copied, downloaded, stored in a retrieval system, further transmitted, or otherwise reproduced, stored, disseminated, transferred, or used, in any form or by any means, except as permitted under the terms of the Subscriber Agreement wherein you obtained access or with prior written permission. Each reproduction of any part of a Westlaw transmission must contain notice of Thomson/West’s copyright. Westlaw, WIN, and KeyCite are trademarks registered in the U.S Patent and Trademark Office. WIN Natural Language is protected by U.S. Patent Nos. 5,265,065; 5,418,948; and 5,488,725.

  
  

  Where Thomson/West gets off telling me what I can and can’t do with information they don’t own is beyond me. By drawing the text of the House Report from the original U.S. Government publication, however, Wikisource’s version avoids entanglement with similarly overreaching proprietary claims.



• It’s complete. Other online versions of the Report, as well as most hard-copy reprints (e.g., 1976 U.S.C.C.A.N. 5659), omit certain portions. Typically, they exclude the text of the legislation (pp. 1–46 of the Report) as well as an especially lengthy, complicated three-column table that offers a side-by-side comparison of (1) the version of the bill that passed the Senate in 1975, (2) the text of the House’s amended version, and (3) the corresponding provisions, if any, of the Copyright Act of 1909 (pp. 186–358 of the Report). Wikisource, in keeping with its general editorial philosophy, reproduces the complete text in its entirety; the site’s editors don’t substitute their own judgments about which portions of the document will be useful to you.


• It’s pinpoint-hyperlink-able (I’m sure I’m overlooking a more technologically correct way of saying that). Did you spot those hyperlinks in the preceding paragraph? Mitigating the potential unwieldiness of posting a 370-page document as a single Web page is the fact that anchor elements are included to take you directly to any page within the document. So if you want to jump straight to the Committee’s discussion of fair use, for example, you can.


• It’s (optionally) annotated. Wikisource reproduces original texts as published, warts and all. But the architecture of the site makes it easy to offer an alternative annotated version of the text where errors are marked and corrections offered.

Assisting with the creation of the online version of the House Report has been an educational experience, and I expect to have more to say about the pros and cons after my CALI talk. For now, though, I’m pleased just to report that an important and influential primary reference source in copyright law has, three decades after the fact, at last become freely available online.

ICM Registry, Applicant of the Proposed .XXX Domain, Files Independent Review Petition Against ICANN

ICM Registry, Applicant of the Proposed .XXX Domain, Files Independent Review Petition Against ICANN:


In a public letter posted on ICM Registry's Website, Stuart Lawley, Chairman and President of the organization has announced that last week an independent review petition against ICANN was filed. In March 2007, ICM's application for a new .XXX Top-Level Domain (TLD) was rejected by ICANN after a three year long process costing ICM reportedly over US$ 4 million in total (view all related posting). Following is the text from today's announcement... More...

FTC Halts Cross Border Domain Name Con Artists

FTC Halts Cross Border Domain Name Con Artists:


A U.S. District Court Judge has ordered a halt to the illegal practices of Canadian operators who deceptively posed as domain name registrars and sent bogus bills to thousands of U.S. small businesses and nonprofit organizations for their annual "WEBSITE ADDRESS LISTING." Many of the businesses and nonprofits believed they would lose their domain names unless they paid the bill, so they paid. The Federal Trade Commission alleged that in most cases the defendants did not provide domain registration services, did not provide the "search optimization" services it claimed to provide, and bilked small businesses and nonprofits out of millions of dollars. More...

CIRA Creates Backdoor WHOIS Exceptions for Police and IP Owners - Michael Geist

CIRA Creates Backdoor WHOIS Exceptions for Police and IP Owners:


Earlier this year, I wrote glowingly about the new CIRA whois policy, which took effect today and which I described as striking the right balance between access and privacy. The policy was to have provided new privacy protection to individual registrants ? hundreds of thousands of Canadians ? by removing the public disclosure of their personal contact information (though the information is collected and stored by domain name registrars).

Apparently I spoke too soon. Faced with the prospect of a privacy balance, special interests representing law enforcement and trademark holders quietly pressured CIRA to create a backdoor that will enable these two groups (and these two groups alone) to have special access to registrant information. In the case of law enforcement, police can bring cases to CIRA involving immediate risk to children or the Internet (ie. denial-of-service attacks) and CIRA will hand over registrant information without court oversight. In the case of trademark holders (as well as copyright and patent owners), claims that a domain name infringes their rights will be enough to allow CIRA to again disclose registrant information.

This represents a stunning about-face after years of public consultation on the whois policy. While the law enforcement exception appears to be narrowly tailored, the exception for trademark, copyright, and patent interests undermines a crucial part of the whois policy, namely compliance with Canadian privacy law (the policy now arguably violates the law) and the appropriate balance between privacy and access. For example, consider a Canadian that registers companysucks.ca (name your company) as a whistleblower site about a particular company. They understandably wish to remain anonymous to the general public since disclosure of their personal information could lead to negative repercussions. Under the new CIRA policy, if they use fake registrant information, they risk losing the domain. On the other hand, the backdoor exception means that the trademark holder can easily smoke out the identity of the registrant as CIRA will simply hand over this information.

Just over six weeks ago, CIRA celebrated its one millionth domain name registration and claimed world class status. Today, the organization has betrayed the very principles of consultation upon which it was built and sent a discouraging message that special interests matter more its own members.

Domain Names Users vs Domain Names Registrants

Domain Names Users vs Domain Names Registrants:


Antony Van Couvering from names@work writes that ICANN's constituencies are a "bad idea". While I am not sure to agree with him on the general principle, he makes some interesting remarks. Among others, he points out that the Generic Names Supporting Organization (GNSO) includes groups that seem to be redundant (the Business and Intellectual Property constituencies) and others like domainers which are not represented in the ICANN arena, yet are an integral part of the domain name business... More...

Domain-Name Error Redirect: Incentives and Solutions - Circle ID

Domain-Name Error Redirect: Incentives and Solutions:


Some domainers, having forgone parking revenue to avoid any claims of trademark violation, have then found themselves thrown into legal trouble with trademark claimants because of actions taken by a third party (ISPs and PC manufacturers). In addition to the resulting direct legal cost, the possibility of action by a third party heightens uncertainty and steals management's attention away from its real job. The troubles for the domain name owner start when a surfer who enters in the browser an inactive domain name is redirected to a Web page with advertising instead of getting a page that says there is an input error... More...

What is the JPA?- Bret Fausett

What is the JPA?:


With the NTIA's mid-term review of ICANN's performance under the JPA underway, and ICANN writing to the United States to say "the JPA is no longer necessary and can be concluded," you might well ask yourself, "What is the JPA?" I did, and I'm as steeped in this as anyone.

My sense is that not everyone uses the term "JPA" to refer to the same thing. If we're talking about "concluding the JPA" (what ICANN wants) or "evaluating ICANN's performance under the JPA" (what the NTIA is now doing), it's very important to know if we're talking about the same things when we use the term "JPA.". You'll want to think about this too before you submit comments before next week's February 15th deadline.

Here's what I know. In September, 2006, about the same time that ICANN and the NTIA entered what should have been called "Amendment 7" to their November 25, 1998 Memorandum of Understanding, they stopped using the term "MOU" and began referring to their agreement, as modified over the years, as a "Joint Project Agreement." If you look at the text of their September 29, 2006 agreement, you can see that references to the "MOU" have been replaced with references to the "JPA."

This September 29, 2006 Agreement, however, is not a complete document. By its plain terms, it is an amendment to something else. That something else is the November 25, 1998 MOU.

Some people loosely refer to the "JPA" as the set of tasks listed in the September 29, 2006 amendment. Even ICANN's current Chair, Peter Dengate Thrush, uses the term "JPA" loosely in his letter to the NTIA. He talks about "The JPA – like the memorandums of understanding before it," as though the JPA somehow replaced the MOUs. In one sense, doing away with the list of tasks in the September 29, 2006 amendment is sound. ICANN is at a stage of its development where it ought to set its own agenda, for right or wrong, and it no longer needs the constant reporting to the USG that it has done over the last few years.

So if "conclude the JPA" means allow ICANN to set its own agenda and free ICANN from its reporting requirement to the USG, I can support that.

In its proper form though, the "JPA" refers to the complete current contract between ICANN and the United States. It starts with the November 25, 1998 agreement and is modified seven times, most recently by the September 29, 2006 "JPA." Copies of all versions are here, on the NTIA website.

Just for my own education, I created a complete version of the Agreement, starting from the first MOU and incorporating all of the revisions over the years. The result is here, in a PDF document:

Statement for the Record of Karl Auerbach

Statement for the Record of Karl Auerbach:


Statement for the Record of

Karl Auerbach

Former (and only) North American Director Elected to the Board of Directors of ICANN
Yuen Fellow of Law and Technology (Caltech and Loyola Law School)
Norbert Wiener Award (2002)
Co-Founder Boston Working Group (BWG)
Chief Technical Officer, InterWorking Labs, Inc.
Director, Domain Name Rights Coalition
Attorney at Law (California) and member of
the Intellectual Property Section of the California State Bar.

on

The Continued Transition of the Technical Coordination and Management of the Internet's Domain Name and Addressing System: Midterm Review of the Joint Project Agreement
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
[Docket No. 071023616-7617-01]

February 6, 2008

Comments

In 2006 when NTIA last inquired about ICANN, I submitted a set of comments.  These may be seen on-line at: http://www.cavebear.com/archive/public/ntia-july-7-2006-statement.html

It is now 2008.  Those comments made in 2006 remai

Special Circumstances My Foot - Karl Auerbach

Special Circumstances My Foot:

The "whois" system for domain names is the single greatest violation
of privacy rights on the internet.

A reasonable cure has been put forth that would require only that domain name registrants designate a contact, who could be an agent, to receive communications pertaining to the technical operation of the domain.  This is not unlike the way that corporations keep much of their structure private by designating an agent for the receipt of legal notices.  ICANN and Verisign both do this.

The industry that protects intellectual property (not to be confused with the industry that creates intellectual property) does not like this proposal; they would prefer that every person go naked on the internet, with their names and numbers tattooed to their chests, and live in glass houses.

The trademark industry wants domain name registrants to reveal their information, and that of their families and children, to the anonymous predators of the world on a 24x7 basis.

The trademark industry will allow but one exception - if a person claims sanctuary on the basis of "special circumstance".  What this means is that a few shelters for bettered women might be allowed to refrain from publishing their contact information.

This "special circumstances" proposal is contrary to one of the most fundamental tenets of modern society, that a person is presumed innocent until proven guilty.  The "special circumstances" proposal is nothing short of a systematic conclusion that you and I and every other domain name registrant is to be presumed to be a thief and unworthy of privacy.  The burden is placed not only on us to rebut that presumption but to do so in advance even of an accusation.

We are being told in no uncertain terms that our privacy, and that of our families and children, is worth less than a trademark.

The "special circumstances" shoe should be put on the other foot.  If a trademark owner wants to penetrate the privacy of the Whois data that owner should be obligated to make a specific accusation, saying on a permanent public record, what rights of that owner are being violated by the accused domain name owner and what facts exist to support that accusation.

In other words, the trademark owner should be required to demonstate, with concrete accusations backed by concrete facts, that special circumstances exist that are sufficient to violate a person's right to privacy.

We have seen how the music and movie vigilantes, the RIAA and MPOA, have run amok making groundless accusations against thousands of innocent people.  These are the law-firm office mates of the trademark people who want to violate our privacy in our domain names.  There is much reason to be skeptical of their intentions.