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Comments of CPSR on Domain Name System to Department of Commerce

Before the
Washington, D.C. 20230

In the Matter of)
Improvement of Technical Management of)Docket No. 980212036-8036-01
Internet Names and Addresses;)
Proposed Rule)


The Computer Professionals for Social Responsibility (CPSR) <>, by their attorneys, respectfully submit these comments on the “Green Paper” <> released by the National Telecommunications and Information Administration (NTIA) <> regarding present and future systems for registration and administration of Internet domain names.


NTIA has developed a serious and generally sensible review of Domain Name System (DNS) administration that embraces the key principles establishing a fully non-governmental, self-governance model for the Internet. CPSR is pleased that the U.S. government has recognized the need to act—as CPSR proposed—as a catalyst in assisting the creation of the new self-governance organizations that will be necessary to complete the transition to a non-governmentally administered Internet and that can continue the collaborative, consensus-driven processes that have traditionally characterized the development of policy and standards by the Internet community

We strongly believe that the Green Paper’s unequivocal endorsement of registrar competition, via shared generic Top Level Domains (gTLDs), is appropriate and in the best interests of all Internet users, developers and service providers. As detailed in our August 1997 comments in this proceeding, CPSR—a public interest alliance of information technology professionals and others concerned about the impact of computer technology on society, founded in 1981, with over 1,400 members and 22 chapters nationwide—shares the Green Paper’s concern with avoiding changes in DNS administration that could threaten the technical efficiency and stability of the Internet. As a result, we concur with the Green Paper’s recommendation that the DNS “root” servers must be coordinated, and that “competing root systems” would represent a tragic departure from the principle of universal accessibility that is inherent in the Internet. As CPSR commented previously:

[C]hanges to the current DNS model must reflect the twin goals of maintaining Internet self-governance, thus minimizing government’s substantive role in Internet administration, while avoiding the continuation of de facto DNS monopolies in the increasingly commercialized Internet. . . . The Internet domain name registration process should be opened to competition for all existing and newly created generic top-level domains (gTLDs). . . . The Internet’s “root” server administration responsibilities should be coordinated and centralized in order to assure reliability and scalability of the Internet.

Consequently, the Green Paper’s proposal for the creation of a “private, not-for-profit corporation . . . to manage the coordinated functions in a stable and open institutional framework” represents a model for Internet administration that is orders of magnitude better than the flawed Council of Registries (CORE) initiative supported by some International quasi-governmental organizations (ITU, WIPO, OECD, etc.) because such organizations should have no formal role in Internet governance or domain name registration. We only caution that in allocating Board of Directors seats on the Ònew corporation,Ó special care must be taken to ensure balanced and fully international representation by all Internet stakeholders, including the substantial segment of non-commercial Internet end users who are not reflected in the Internet Society or other current Internet-related governance organizations. CPSR agrees wholeheartedly with the Green Paper’s principle that the process of DNS reform “should, as far as possible, reflect the bottom-up governance that has characterized development of the Internet to date.”

At the same time, CPSR has a few significant reservations regarding the Green Paper’s specific proposals, especially its attempt at resolution of what the Green Paper terms “the trademark dilemma.” We continue to believe that domain registration should be separated from trademark issues. Registrars should not be involved in trademark dispute resolution, but rather should refer all trademark issues to appropriate national and international judicial bodies. Although in comparison to the CORE initiative, the Green Paper’s trademark procedures are relatively benign (e.g., domain owner information, searchable database of second-level domain registrants), the Green Paper nonetheless would mandate an “alternative dispute resolution” process for all registrars. Along with a questionable assertion of unilateral US jurisdiction to dictate—if only in the short run—the pace of competition in gTLD creation and registration, which CPSR also opposes, the Green Paper’s foray into the quagmire of Internet trademark issues is its greatest weakness. In the absence of any technical reasons to decide trademark issues or to set gTLD constraints, of which CPSR is unaware, the US government should not, of its own authority, attempt to impose such rules on the Internet prior to a consensus being achieved in the new Internet self-governance corporation as to these important matters.

A. Trademarks

Although the Green Paper agrees that creation of a “monolithic trademark dispute resolution mechanism” is inappropriate, its proposed mechanisms for “balancing” rights of domain holders and trademark owners represent a clearly inappropriate intrusion of trademark concerns into DNS administration. Much of the impetus for the CORE plan stemmed from differences between trademark owners and others as to the relative rights, and economic leverage, that NSI’s own (and unilaterally imposed) dispute resolution policies have engendered over the past several years. The Green Paper appropriately eschews the highly bureaucratic, centralized procedures and rules developed by CORE to protect the commercial interests of trademark owners.

CPSR does not object to the provisions suggesting that all gTLD registrars should maintain current, accurate records of each second-level domain registrant, and that each registrant should certify that it is not aware of an entity “with superior rights in the domain name.” These are reasonable proposals for information collection that will assist in the resolution of the tiny minority of domain name registrations that are ultimately disputed. Yet the Green Paper also proposes to require each registrar to make available—and agree to abide by—“a readily available and convenient dispute resolution process.” This mandatory alternative dispute resolution (ADR) provision should be deleted. Trademark owners, as commercial entities, have the legal and financial responsibility to “police” use of their marks and, if necessary, take enforcement action under specific national laws in the applicable country of jurisdiction. There is nothing about the Internet that warrants the creation of a dispute resolution mechanism designed, as the Green Paper apparently aspires, to lessen the burden on trademark owners of protecting their intellectual property. If the objective of the Green Paper is, on the other hand, solely to “provide trademark holders with the same rights they have in the physical world,” then these ADR provisions are plainly superfluous, as they provide intellectual property rights, and “convenience,” to trademark owners that are not enjoyed with respect to any other medium of communication.

In its August 1997 comments, CPSR recommended that gTLD registrars should not intervene in disputes between trademark owners and domain holders, but rather should refer disputes to the applicable national courts. We urged the US government to “assist this sensible result by making clear its view that because registration of a domain name is not the ‘use’ of a trademark, the domain registration process cannot constitute ‘contributory infringement’ under US trademark law such that registries would be exposed to legal liability for ignoring a request to ‘take down’ a potentially infringing registration.” Consistent with a subsequent decision by the United States Court of Appeals for the Ninth Circuit, the Green Paper states that “the law provides no basis for holding that a registrar’s mere registration of a domain name . . . should expose it to liability.” We applaud NTIA for this forthright statement, and strongly suggest that there should be no additional procedures, rules or requirements for domain name registrations involving potential conflicts with commercial trademarks.

The Green Paper asks for comment on two specific proposals regarding trademarks. First, whether registrars should be compelled to provide for an accelerated dispute resolution timeframe, with suspension of a disputed domain name registration in the interim. Second, whether at the time of domain name registration, registrants should be required to agree to judicial jurisdiction “where the registry is domiciled, where the registry database is maintained, or where the ”A“ root server is maintained.” Consistent with the foregoing, CPSR believes that a mandatory suspension and ADR deadline is inappropriate and unnecessary. Moreover, while we agree that clearer rules of Internet-based jurisdiction are needed to deal with the new medium of cyberspace, whether registries should impose jurisdictional conditions on gTLD domain registrations is an issue best resolved, if at all, by means of an international, multilateral treaty-level legal agreement, rather than the unilateral mandate of the US government.

B. Internet Self-Governance

As noted, the Green Paper’s proposal for creation of a private, not-for-profit corporation (the new corporation) to manage coordinated Internet functionalities, including the present IANA function of IP number allocation, is a landmark development. If implemented correctly, this approach will help assure that the ongoing DNS administration will be handled in an open, balanced and non-governmental manner, with full participation by consumers and small commercial entities, in addition to trademark owners.

It is essential, however, that the new corporation is truly open and free from conflicts of interest. Accordingly, while CPSR agrees with reservation of Board seats to regional IP number registries (ARIN, APNIC, RIPE) and the IAB, we do not believe that the reservation of only one Board seat for “an individual or entity engaged in non-commercial, not-for-profit use of the Internet” is appropriate. Internet “users” have, unfortunately, for too long been synonymous with entities operating commercial Internet activities, rather than the millions of individuals (“end users” in other parlance) who actually use the Internet for communications. CPSR urges that both the Internet “membership association” contemplated by the Green Paper, as well as the new corporation Board seats, have at least equal representation by both Internet end users and commercial Internet providers. In other words, four of the seven Board seats allocated to a Òmembership association (to be created) representing Internet usersÓ should be reserved for non-commercial, non-profit Internet users. Moreover, Board members should not be employees of registrars, registries or of any other entity competing for commercial services in the domain name registration market.

CPSR concurs that the new corporation must “reflect changes in the constituency of Internet stakeholders.” That means, we believe, that governance of the new corporation must be formally vested in an international Board, with full representation from all parts of the world. Both in order to avoid the appearance of US hegemony, as well as to secure the political support the Green Paper requires in the context of the global Internet, CPSR believes that Board representation should also be reserved for international representatives. While these should not be government or quasi-government representatives, the importance of internationally balanced representation cannot be understated.

The new corporation should be prepared to deal with disputes between registrars and registries, but it should not be designing protocols or participating in technical work now done by the IETF. It should also not use its number-assigning role to “pick winners” in opening of new gTLDs. In this regard, while CPSR agrees that in performing coordinated Internet functions the new corporation will be acting “much like” a standards-setting body (and with applicable legal liability if competitive safeguards and open processes are not observed), it is vital to state clearly that the new corporation will not be engaged in developing or adopting Internet technical standards. For instance, if technical standards are required for the development of registry sharing or for root server coordination, these should continue to be driven by the technical members of IETF, rather than the new corporation.

C. Registrars and Registries

CPSR’s basic principle, as outlined in its August 1997 comments, is that DNS competition should be introduced in a way that does not jeopardize the technical stability of the Internet. Accordingly, we opposed the CORE proposal because it did not directly deal with the importance of coordination and/or centralization of the root server functions that are essential to maintaining universal resolvability of all gTLDs on the Internet. CPSR also opposed “branded” (i.e., proprietary) gTLDs, and believes that marketplace competition in the registration market will be more than adequate—as current trends already demonstrate—to produce innovation, efficiency and capital investment.

The Green Paper’s response is for the most part entirely consistent with these views. First, the Green Paper advocates centralization of root server administration in the new corporation, but recognizes that if a “system of authoritative roots” is coordinated and synchronized, there is no technical need to retain a single “dot” server, and with it a continued risk of catastrophic network failures. Second, the Green Paper proposes that all gTLDs, including “.com,” shall be open to registrar competition on a shared basis. Third, the Green Paper proposes that a limited number (five) of new gTLDs be established by September 30, 1998, as a transitional measure, in order to avoid “destabilizing” the Internet.

CPSR agrees with the first two of these proposals. As to the short-term creation of new gTLDs, we question whether the need for short-run competition outweighs the potential cost—in terms of legal exposure, commercial disputes and the political constituency the Green Paper will enjoy internationally—of the US government unilaterally dictating the opening of new gTLDs. Not only are there a number of existing entrepreneurs that are attempting to develop commercially viable registries to compete with NSI, but, as CPSR observed, there is a serious question whether the US government has the legal authority to mandate any specific domain name registration processes for gTLDs in light of the global, supra-national nature of the Internet. Moreover, except for the technical complexity of shared registries, there does not appear to be any serious technical reason why the number of new gTLDs needs to be restricted in the short run. Thus, the Green Paper’s limitation of five new gTLDs is, in some respects, designed more to protect trademark holders from the difficulties of “policing a large number of top-level domains” than to respond to any legitimate issues affecting the Internet’s technical stability.

While CPSR agrees that NSI should be subject to real competition in both registry and registration services as soon as is technically feasible, the importance of a bottom-up process, based on valid technical considerations, must take priority. NTIA should therefore consider whether, at least in the absence of broad international endorsement, it would not be preferable for the US government to create the new corporation, based on the principles of competition, openness and technical stability, and leave it to the new corporation to determine whether, and if so to what extent, limits on gTLD creation or introduction should be imposed. At the very least, the NTIA and the new corporation should avoid selecting new gTLDs based on competing claims of business interests of potential registrars. Names like “.web,” “.pers,” “.mall,” etc. have been “claimed” by private entrepreneurs, and are therefore suspect.

CPSR is also concerned that maintaining monopoly provision of registries—especially in the short run—could have profoundly anti-consumer consequences. We believe that once new gTLDs are opened, there will be an unprecedented level of demand for second-level domain registrations. If all of these users are “locked” into a single registry (with attendant price gouging possibilities), without portability, because registry services remain sole-sourced for each new gTLD, the advent of registration competition will hardly have the benefits predicted. We do not necessarily believe that all gTLD registries must be operated on a non-for-profit basis, but rather that coordination of gTLDs zone files is required technically. If there is a way to ensure portability among TLDs and create market incentives in all DNS markets, that clearly is the preferable approach.


The Green Paper has done a notable job in deciphering the complex legal, technical and policy questions surrounding DNS reform. The principles articulated in the Green Paper—along with its bottom-up, non-governmental approach to Internet governance—are entirely appropriate to the global, decentralized Internet. The proposals can be improved significantly, however, by (1) entirely separating DNS administration and trademark issues; (2) creating more user-based and international representation on the “new corporation;” and (3) avoiding unilateral, US-imposed limits on new gTLDs while opening the DNS process to real competition in both registry and registration services as soon as is technically feasible

Respectfully submitted,
By: /s/ Glenn B. Manishin____________
Aki Namioka, President
Harry Hochheiser
Andy Oram
Computer Professionals for Social Responsibility
P.O. Box 717
Palo Alto, CA 94302
Glenn B. Manishin
Blumenfeld & Cohen - Technology Law Group
1615 M Street, N.W., Suite 700
Washington, D.C. 20036

Counsel for CPSR

Dated: March 23, 1998

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