Registration of Internet domain names

Only one person or organization can have a particular domain name. If you decide to name your organization something that has the initials CPSR, you’re welcome to do so, but you can’t point users to a Web site or email address on cpsr.org because that belongs to us. Policies for assigning domain names must change with the explosive growth of the Internet, but the need for policy decisions reveals that the Internet lacks clear guidelines for who makes the rules. A presentation on the key policy issues concerning domain names was offered by Andy Oram, Cyber-Rights moderator, at a conference of an international policy-making body, the OECD. The Civil Society Internet Forum, of which CPSR is a founding member, follows domain name issues.

In October 1998, the Commerce Department approved the creation of a new corporation called the Internet Corporation for Assigned Names and Numbers (ICANN), proposed by the Internet Assigned Numbers Authority (IANA). Criticisms of ICANN procedures were summarized well in a letter from the U.S. Small Business Administration.

The key question determining the future of ICANN as well its supporting organizations is membership—who can be members and what powers they have. The focus of attention is on general (or “At Large”) ICANN membership and membership in the “General Assembly” of the Domain Names Supporting Organization. The latter proposes policies and administrative practices related to domain names, but is dominated by businesses that offer domain name services or have intellectual property interests in domain names. While the circle making decisions is still drawn quite small, the initial board has shown interest in setting many permanent policies in place, such as the UDRP.

Although the unelected ICANN Board extended their terms for an extra year, they also instituted procedures for a limited election that would give the public (a hard-to-define constituency) a say in choosing some of the new Board members. The complex terms of this semi-democracy were widely criticized, most notably in a study by Common Cause and the Center for Democracy and Technology. Finally, five members were elected, two of them critics of current ICANN policy, to join the ten unelected members. While accountability to a broad public is always hard to guarantee, it is clear from the election results that the at-large membership is the most open part of ICANN—and therefore the part to be reined in. Following the release of a report on membership, ICANN is likely to cut out the general public and restrict both membership (by imposing a fee and limiting membership to domain name holders) and the role of the members (by allowing them elect only a tiny minority of the board).

One of the key tasks assigned to ICANN was to increase the number of available domain names by creating new top-level domains (taking pressure off of current domains like .com) but in July 2000 they essentially limited the space to major commercial ventures by announcing that anyone who wished to administer a new top-level domain would have to pay them $50,000 just to consider the application. ICANN has not indicated how many new top-level domains will be created, but so far they have created only seven (including some very odd choices like .aero and .museum, and a .biz domain that was already in use by an alternative registry) and show no interest in creating more.

ICANN enforces resolution of trademark disputes through a Uniform Dispute Resolution Policy that applies to global top-level domains (.com, .org, .net, and .edu, and the new ones). The main problem that critics have found with the UDRP is that, in order to reduce the costs and speed the resolution of conflicts, it substitutes a brief judgement by an ill-defined panel for court proceedings that can carefully examine the context and history of a case. Studies have shown that most judges are overwhelmingly likely to find the case for the trademark holder. Originally, the UDRP was a carefully hammered-out compromise that significantly softened a proposal from the World Intellectual Property Organization (WIPO) favoring trademark holders over small domain-name holders. However, a large number of trademark holders choose to bring their UDRP complaints to WIPO to mediate, so in practice the trademark-friendly policy predominates. An organization called the Association for Domain Owner's Rights/Domain Owner's Constituency has been formed with the goal of protecting the rights of small domain name holders.

The pressures of trademark disputes have led the U.S. Congress to precipitously pass into law a bill updating its trademark law to cover domain name disputes; the Domain Name Piracy Prevention Act (S. 1461) was introduced in the Senate on July 29, followed in the House by the very similar Trademark Cyberpiracy Prevention Act (H.R. 3028) on October 6. The bill was criticized letter by several public interest representatives as a heavy-handed extension of tradmark holders’ rights at the expense of Internet expansion and free speech. While the bill claims to combat cyberpiracy (which is more neutrally known as “abusive registrations” or “domain name speculation” by other parties), it is vague enough to make the possession of domain names dangerous for legitimate, noncommercial people and organizations. Penalties for people found to be in violation of the law are also so high that they encourage trademark holders to bring suits.

Since the Commerce Department tasked ICANN with increasing the number of global Top-Level Domains (like .com) a working group within ICANN has released a group of position papers that disagree in how fast or how far to go. CPSR has written a comment supporting a market-driven expansion that allows diversity and lets users choose the winners.

At a CPSR conference on political developments in domain names and its impact on the administration of the Internet, Ralph Nader proposed principles for ensuring that ICANN does not exceed its mandate and that the rights of all domain-name holders are protected in a commercial environment.

When WIPO issued draft recommendations for handling trademark and other intellectual property issues, CPSR, Electronic Frontiers Australia, and Electronic Frontiers Spain (FrEE) submitted reply comments. Another influential critique of the recommendations was written by law professor A. Michael Froomkin. The WIPO final report acceded to criticism and tried to narrow the scope of disputes covered, saying that domain names should be removed only in case of “abusive registrations” (which the report tried to define) and that policies should cover only currently known issues with trademarks, not all potential intellectual property disputes. ICANN has postponed adoption of the report, also apparently in response to critics of the WIPO report.

The parameters for discussion were laid out in a White Paper from the U.S. Commerce Department (through its subordinate, the NTIA). This paper hands critical decisions over to a non-profit corporation that is to be created with 15 representatives of various stakeholders—but the means for choosing the representatives remains unspecified. An NTIA site contains four proposals and an enormous number of comments, including one submitted by CPSR. NTIA also received a very different proposal challenging the assumption that domain names should be privately administered and recommending a more collaborative effort coordinated by a public research project.

Since the debates around ICANN involve people who have been arguing in many different forums for several years, some history is useful. The current process began after an organization set up by the Internet Society, the Internet International Ad Hoc Committee, released a proposal for increasing the number of names and of organizations with the right to assign names.

The proposal encountered much criticism, including an alternative proposal from Network Solutions Inc. (NSI), a statement from the CIX trade association of Internet providers, a brief written by Internet veteran Anthony Rutkowski for the World Internetworking Alliance, and comments from the Domain Name Rights Coalition (DNRC).

CPSR submitted a set of proposals to the first conference of an open group called the International Forum on the White Paper, set up to create the new corporation before debate was preempted by the IANA proposal.

Going back further, the history of the attention given by the U.S. Department of Commerce includes an early request for comments answered by a large number of organizations and individuals including CPSR. The White House then released a preliminary proposal, to which many organizations returned comments, including CPSR.

When NSI attempted to resolve the disputes that have arisen when multiple organizations or individuals try to claim the same domain name, by stating that pre-existing holders of trademarks have precidence, dissenting Internet users formed the Domain Name Rights Coalition. Two organizations offering alternative domain-name service (and thus trying to make an end-run around NSI) are Alternic and EDNS. While these companies offer their own servers, another named pgMedia is trying to change official DNS policy by allowing all names to be registered on the official root servers; it has released a motion for an injunction and a reply in a case against NSI and the National Science Foundation.

The U.S. government also released a request for comments on how to administer the under-utilized .us domain. The Postal Service has indicated an interest in taking it over.

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Last updated: November 21, 2001

Suggestions to: cyber-rights-owner@cpsr.org