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Before the
UNITED STATE DEPARTMENT OF COMMERCE
NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION
Washington, D.C. 20230
| In the Matter of | ) | |
| ) | ||
| Request for Comment on Registration | ) | Docket No. 970613137-7137-01 |
| and Administration of Internet | ) | |
| Domain Names | ) | |
COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY
| Aki Namioka, President | Glenn B. Manishin |
| Harry Hochheiser | Michael D. Specht |
| Andy Oram | Christine A. Mailloux |
| Computer Professionals for Social | Blumenfeld & Cohen - Technology Law Group |
| Responsibility | <http://www.technologylaw.com> |
| <http://www.cpsr.org/home.html> | 1615 M Street, N.W., Suite 700 |
| P.O. Box 717 | Washington, D.C. 20036 |
| Palo Alto, CA 94302 | 202.955.6300 |
| 415.322.3778 | |
| Counsel for CPSR |
Dated: August 18, 1997
SUMMARY
| A. | The Internet domain name registration process should be opened to competition for all existing and newly created generic top-level domains (gTLDs). | ||
| 1. | Shared gTLDs should be administered by competing registrars, with restrictions imposed only based on any technical limitations. | ||
| 2. | No registrar (NSI or others) should enjoy a proprietary interest or commercial "ownership" of any gTLD, including ".com". | ||
| B. | 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. | ||
| C. | The Internet’s "root" server administration responsibilities should be coordinated and centralized in order to assure reliability and scaleability of the Internet. | ||
| D. | The DNS reform process and ongoing DNS administration should be handled in an open, balanced and non-governmental manner, with full participation by consumers and small commercial entities, in addition to trademark owners. | ||
| 1. | International quasi-governmental organizations (ITU, WIPO, OECD, etc.) should have no formal role in Internet governance or domain name registration. The extensive new bureaucracy for domain name management and oversight proposed by IAHC, including a Swiss-based Council of Registrars (CORE), a Policy Advisory Board (PAB) <http://www.pab.gtld-mou.org> and a higher level interim Policy Oversight Committee (iPOC), is unnecessary and counterproductive. | ||
| 2. | National governments (Commerce, DOD, etc.) have no necessary role in DNS administration except for ISO 3166 TLDs (e.g., ".us," ".de," etc.) and maintaining fair, open and competitively neutral Internet self-governance organizations. | ||
| 3. | The IAHC process was inconsistent with open Internet self-governance and biased towards trademark owners. With encouragement from NTIA, the Internet Society (ISOC) should be required to open up the process to permit full debate by the global Internet community on DNS practices. The absence of any "crisis" in domain name resources allows for thoughtful and deliberate consideration of DNS issues. | ||
| 4. | Hasty implementation of the IAHC approach will continue to splinter the Internet community and would unnecessarily involve international quasi-governmental organizations in Internet governance. The DNS reform process should be slowed in order to permit achievement of a consensus approach that all interest groups (including Internet users/consumers) can support. No "rush to reform" is necessary. | ||
| 5. | The US government should not endorse, and should actively oppose, intervention by ITU and WIPO in the DNS administration process. The government should not attempt to unilaterally dictate any specific domain name registration process for gTLDs, which are global Internet resources. | ||
| I. | INTRODUCTION | ||||||||||||
| A. | Background | ||||||||||||
| 1. | The domain name system (DNS) provides a key service in the global Internet. In translating Internet "host" names into Internet Protocol (IP) numbers needed for transmission of information, DNS shields network users and administrators from the complexities of using IP numbers to identify computers, routers and networks on the Internet. Without a reliable, efficient and robust DNS system -- including registration of domain names and management of DNS servers -- the Internet as currently configured could not function in the user-friendly manner available for such current Internet applications as electronic mail and World Wide Web (WWW) browsing. DNS administration also plays an important role by maintaining "root" servers that operate as the highest-level Internet databases for translating domain names into IP addresses, without which domain name-based Internet communications would not be possible. | ||||||||||||
| 2. | Many governmental, quasi-governmental and private groups, along with users and Internet service providers, are currently examining the limitations of the current DNS and domain name registration models, including questions related to introducing competition to domain registration, oversight mechanisms for DNS administration, opening of new generic top-level domains (gTLDs), and the role of registrars in resolving trademark disputes regarding domains. | ||||||||||||
| 3. | One of these groups, the so-called Internet Ad Hoc Committee (IAHC), has proposed and is implementing a plan for establishing new gTLDs, with significant input from and the endorsement of international multilateral organizations, such as the World International Property Organization (WIPO) <http://www.wipo.int/> and the International Telecommunication Union (ITU) <http://www.itu.ch>, as well as major trademark holders. After signing of its MOU in Geneva, the IAHC was dissolved on May 1, 1997 and replaced by the iPOC <http://www.gtld-mou.org/docs/ipoc-members.html>. | ||||||||||||
| 4. | The IAHC proposal has drawn opposition and criticism from parties ranging from Network Solutions, Inc. (NSI) <http://www.netsol.com>, the current US government-selected contractor responsible for registrations in the ".com," ".gov," ".org," and ".edu" domains, to the Domain Name Rights Coalition <http://www.domain-name.org/dnrc-comments.html>, the World Internetworking Alliance <http://www.wia.org/pub/dns-brief.html>, the Organization for Economic Cooperation and Development (OECD) <http://www.oecd.org/>, Directorate General XIII (telecommunications) of the European Union <http://europa.eu.int/en/comm/dg13/13home.htm>, and major US-based Internet service providers. Alternate DNS models have also been developed by other providers of domain name services, such as eDNS <http://www.edns.net/> and AlterNIC <http://www. alternic.net>, and in draft form by the Internet Engineering Task Force <http://www.iahc.org/contrib/draft-iahc-higgs-tld-cat-03.txt>. At least one entity has filed suit against the IAHC plan in the United States <http://www.wia.org/dns-law/pub/stef-io-declaration.html>. | ||||||||||||
| B. | CPSR’s Concerns | ||||||||||||
| 1. | CPSR is 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. CPSR believes that the Internet is a potentially revolutionary medium that has flourished, and grown exponentially over the past several years, in large part due to marketplace competition and the absence of restrictive government involvement. We believe these same objectives should be applied to efforts to "reform" DNS administration. Given its central role in the development of the Internet, the US government has judged well when to lead the process of Internet management and when to cede authority to the Internet community and private organizations. In the case of DNS administration, it is time for more decentralization, competition and private initiative, although governments can and should serve as "stewards" of the Internet to ensure open and inclusive processes, prevent anticompetitive practices, and complete the final step in the transition from a government-managed to a private sector, community-administered Internet. | ||||||||||||
| 2. | While CPSR agrees that monopoly domain registrars are a poor substitute for a competitive DNS model, we caution that DNS is too important to the structure of the Internet for DNS "reform" to proceed in a hasty or ill-conceived manner, particularly without adequate input from consumers and other users of the Internet. Whatever its merits, the IAHC process was inconsistent with consensus-based Internet policymaking and is biased towards the rights of trademark owners. The IAHC plan should therefore not be endorsed by the US government. CPSR applauds NTIA for commencing this open, thorough public airing of DNS issues, and for its express acknowledgment that DNS reform, like other aspects of Internet governance, should remain a matter for the Internet community itself, not national or international government agencies. | ||||||||||||
| 3. | The current proposals for DNS reform have been advanced by groups with commercial and institutional objectives that do not necessarily reflect the broader interest in a competitive, non-governmental Internet structure. ISOC is a respected organization, with an important role to play in the Internet community, that to its credit, has correctly recognized that problems exist with domain name administration. However, the outcry provoked by IAHC’s gTLD-MOU shows that its process was not open enough. By unilaterally implementing its proposal through quasi-governmental international organizations (ITU and WIPO), IAHC has sought to legitimize a role in Internet governance it simply does not enjoy, at a time when its controversial proposal was still undergoing critical examination by the Internet community at large. Substantively, although it proposes competitive provision of domain registration in a series of new gTLDs, the IAHC plan is geared largely to the creation of international rules (and mandatory, non-judicial arbitration) for trademark protection of domain names, including a new bureaucracy within WIPO for the resolution of domain disputes. The NSI response, in contrast, proposes to protect its private commercial interests by extending its de facto monopoly on ".com" registrations into a competitive DNS environment, without sharing of TLDs, and has advocated that national and/or international governments should be involved in "oversight" of certain "administrative" DNS functions <http://www.netsol.com/papers/ internet.html>. | ||||||||||||
| 4. | Unlike IAHC or NSI, CPSR believes that the twin goals of competitive Internet services and non-governmental Internet administration can and should be applied to the DNS system. To do so, however, requires recognition that (1) as NSI has explained, there are some functions, known as "root" server management, which need to remain centralized and coordinated in order to promote reliable and scaleable Internet routing, and (2) "rationalization" of trademark law (the pursuit of what IAHC terms "efficient" dispute mechanisms as an alternative to court litigation for trademark protection) for DNS purposes is inconsistent with the traditional, and successful, non-governmental approach to Internet administration. (While the US government for years subsidized certain Internet facilities and still contracts for DNS and IP-number allocation functions, Internet policies, standards and operating arrangements have been set with little if no government involvement since the "commercialization" of the NSFNet backbone in 1994.) | ||||||||||||
| C. | CPSR’s Proposal | ||||||||||||
| A sensible plan for DNS reform combines the better elements of both the IAHC and NSI proposals, while jettisoning others. In this light, CPSR proposes the following principles for reform of the Internet DNS system: | |||||||||||||
| 1. | The domain name registration process should be opened to competition for all existing and newly created gTLDs. | ||||||||||||
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| 2. | 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. | ||||||||||||
| 3. | The Internet’s "root" server administration responsibilities should be coordinated and centralized in order to assure reliability and scaleability of the Internet. | ||||||||||||
| 4. | The DNS reform process and ongoing DNS administration should be handled in an open, balanced and non-governmental manner, with full participation by consumers and small commercial entities, in addition to trademark owners. | ||||||||||||
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| II. |
PRINCIPLES NTIA has sought comment on a set of principles by which the Administration can "evaluate proposals for the registration and administration of Internet domain names." The proposed NTIA principles are: "(1) Competition in and expansion of the domain name registration system should be encouraged. Conflicting domains, systems, and registries should not be permitted to jeopardize the interoperability of the Internet, however. The addressing scheme should not prevent any user from connecting to any other site. (2) The private sector, with input from governments, should develop stable, consensus-based self-governing mechanisms for domain name registration and management that adequately defines responsibilities and maintains accountability. (3) These self-governance mechanisms should recognize the inherently global nature of the Internet and be able to evolve as necessary over time. (4) The overall framework for accommodating competition should be open, robust, efficient, and fair. (5) The overall policy framework as well as name allocation and management mechanisms should promote prompt, fair, and efficient resolution of conflicts, including conflicts over proprietary rights. (6) A framework should be adopted as quickly as prudent consideration of these issues permits." |
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| CPSR Comments | |||||||||||||
| A. | The basic thrust of the NTIA principles are appropriate in light of the needs for competition in gTLD domain registration and for Internet self-governance. | ||||||||||||
| B. | The international role of gTLDs is a crucial aspect of the principles. Neither the US nor any other national government has authority to dictate unilaterally policies or rules for gTLD creation or administration. While the vast majority of ".com" domain registrations certainly remain in the United States, the US government can best promote the global expansion of Internet access -- to the resulting commercial benefit of American-based Internet software, hardware and content companies -- by ensuring that it is not viewed internationally as attempting to secure a favored position for US-centric domain holders in the gTLD scheme. | ||||||||||||
| C. | The IAHC and NSI proposals raise administrative, legal, financial and business issues far beyond the technical focus and scope of the ISOC. ISOC and the other members of IAHC (such as ITU and IANA), have no clear charter to dictate gTLD policy and little if any experience in legal procedure or public policy. A need exists, therefore, for the establishment of new "consensus-based self-governing mechanisms" that allow balanced, fair and open participation on these Internet policy issues by all segments of the Internet community. This includes Internet users, who have essentially been excluded from the IAHC process. Given the crucial nature of end-user participation, the Internet community deserves legitimate public interest, non-profit input into decision making processes. The needs of the Internet community should not be subordinated to profits or control issues. The US government can thus act as a catalyst in assisting the creation of the new self-governance organizations (open and balanced consortia of Internet professionals, providers and users) that will be necessary to complete the transition to a fully non-governmentally administered Internet. | ||||||||||||
| D. | Although the US government has fostered the growth of the Internet and laid the framework for its current expansion and commercialization, its future role should not include oversight of DNS administration or the selection of registrars and other DNS-related entities (InterNIC, IANA, etc.). Rather, the US and other national governments should encourage open, consensus-based Internet self-governance, intervening (as in this proceeding) only to assure public debate and to prevent any single segment of the Internet community from asserting its special interests above those of all Internet users. As in its oversight of the North American Numbering Plan Administrator (NANPA), the US government can also act to guarantee that vital Internet communications resources are managed impartially by the affected industries and to prevent disruptive efforts by other governments and inter-governmental organizations to assert authority over Internet administration. | ||||||||||||
| E. | Conflict resolution for domain name registration need not and should not include resolution of disputes over trademarks or other proprietary rights. DNS policies should be based on technical efficiency, reliability and competitive considerations, without regard to the relative legal rights of trademark owners and domain holders. As discussed in Section VI, "efficient" trademark dispute resolution is a code word for supplanting judicial decision-making with DNS registrar-imposed trademark rules. Particularly in the IAHC proposal -- which provides the basis for WIPO to establish new international common law of trademarks applicable solely to DNS and without resort to national courts -- combining DNS administration and trademark dispute resolution is poor public policy. | ||||||||||||
| III. |
GENERAL/ORGANIZATIONAL FRAMEWORK ISSUES In this Section, NTIA asks for comment on a number of issues related to the operational model for domain name registration and the technical basis for alternatives to the current model, including retirement of gTLDs from circulation, the relationship between root servers and gTLDs, and interoperability among registrars. CPSR believes that the current model for DNS administration -- monopoly registrars for both gTLDs and ISO (country code) domains -- is anticompetitive and will, in the long run, present substantial risks to the scaleability of the Internet. We believe that the disadvantages of the monopoly model clearly warrant a shared registration approach to gTLDs, but that certain functions, namely root server administration, should remain centralized and coordinated in order to preserve the basic reliability and "transparent" functionality of the Internet itself. |
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| A. | Existing gTLDs should not be retired. In addition to the transaction costs and confusion surrounding such an approach, the existence of "supra-national" domains is inherent in the global nature of the Internet, helping to maintain the Internet as a geographical and politically indifferent medium. Instead of eliminating the .com and other gTLD registries, competition should be introduced into domain name registration. | ||||||||||||
| B. | Shared gTLDs are a workable and efficient approach to introducing competition to the DNS system. Much as in the US system for administration of "800" telephone numbers, common standards and technical interfaces can be created -- based on non-governmental industry standards processes -- to allow shared use of the .com resource. Competing registrars would assign available domains in all gTLDs on a first-come, first-served basis, with real-time querying of the appropriate gTLD database. Internet users would in this way be accorded, for the first time, real choice of domain name registrars, with the consequent competitive pressures leading to reduced prices, improved service and innovative registration options. | ||||||||||||
| C. | The IAHC proposal for the establishment of new gTLDs is a good approach, in that it permits use of identical domain names in different gTLDs for different purposes (e.g., mcdonalds.com and mcdonalds.nom). The specific new gTLDs selected by IAHC, however, raise questions about global transparency and potential duplication and user confusion that merit additional study. IAHC’s proposal, now rescinded, to limit the number of registries to 28 (four per WTO region) is unnecessary, as there should be no limits on the creation and operation of domain registries except as may be required for technical reasons. Rather than mandating financial and other registrar qualifications, "quality control" of domain registration should be a function of the marketplace. So long as a registrar follows any technical standards established for assignment of a domain name from a shared TLD, there appears to be no reason why prior "authorization" from any governmental or Internet-governance entity should be required for entry into the domain name registration market. | ||||||||||||
| D. | Root server administration (and related "population" of zone server databases) is a key DNS function that should remain centralized, under the control of a single entity worldwide, and coordinated through a technically reliable and integrated process. Root servers must maintain interoperable, updated databases in order to ensure that all IP networks can communicate across the Internet. As NSI has correctly noted, the IAHC proposal is deficient because it does not reflect this need for root server (what NSI terms "the .dot") centralization and "risks the fragile stability of the Internet" by "increasing the likelihood of failure of the administrative functions and services of the Internet." Competition in root server administration would therefore -- absent some new technical approach to Internet architecture -- appear to represent an exception to the general principle of competition for DNS. (Of course, competition could still exist as part of the root server administrator selection process.) | ||||||||||||
| E. | The US government has traditionally been the "first-mover" on issues related to Internet architecture and administration, but in this instance should refrain from selecting the entity responsible for root server administration. Backbone Internet carriers and other entities, commercial and governmental, responsible for IP transport have the technical background to select a responsible root server administrator and (as in ARIN <http://www.arin.net/>, RIPE <http://www. ripe.net/>, etc.) establish compensation mechanisms under a non-governmental structure. | ||||||||||||
| 1. | End users and domain holders have no substantial interest in root server administration since root servers are "transparent" to them. NSI’s proposal that the US government assume "interim authority" over root server administration -- and then transfer such authority to an international legal entity -- is unnecessary. Absent some fundamental breakdown in the Internet’s technical standards development process, the shared mutual interest of backbone and major Internet transport providers in maintaining functional, high-quality root server management (and ensuring their ability to route domain-based messages to all other IP networks) is sufficient to guarantee a responsible root server administration. | ||||||||||||
| 2. | Root server centralization does not guarantee error-free administration or coordination (synchronization), as the events of the past month (NSI’s snafu) have illustrated. Nonetheless, with the increasing reliance of individuals and businesses worldwide on the Internet, any benefits from competitive provisioning of root server management would appear to be outweighed by the risks of network collapse (and overhead requirements) arising from multiple root server administrators. | ||||||||||||
| F. | Oversight of shared gTLD administration should remain a non-governmental function. It should not be placed under the auspices of quasi-governmental organizations like WIPO or the ITU, as IAHC has proposed. So long as registrars comply with consensus-based technical requirements for domain name registration, there is no need for the creation of CORE, iPOC and the related new bureaucratic bodies IAHC has proposed. Thus, as it has already indicated, the US government should not endorse the IAHC Memorandum of Understanding (MOU) and should oppose the use of ITU and WIPO as oversight bodies for the DNS system. | ||||||||||||
| G. | Administration of gTLDs and ISO country code domains is completely separable. Although the same principles of competition and self-governance should also apply to ISO-domain registrations, these resources have traditionally been considered to be subject to the rules and policies of national governments. There is no technical reason why competitive, shared gTLD administration cannot co-exist with the many monopoly ISO-domain registrars. Indeed, the creation of a competitive system for efficient, worldwide administration of gTLDs would have the commensurate benefit of creating marketplace pressures that would encourage national governments to open their own ISO-domain registries to competitive entry. As the OECD has recommended to EU-member nations for their own country code domains, the US government should consider opening the ".us" domain to competing registries and should actively promote similar procompetitive policies by other national governments for ISO country code domains. | ||||||||||||
| H. | The "transition to any new systems" for domain name registration should be accomplished with the full, open and considered participation of all stakeholders in the Internet. The IAHC proposal, in contrast, raises serious questions about the authority of ISOC and the other members of IAHC to impose their chosen solution for DNS reform and the essential openness of Internet self-governance. | ||||||||||||
| (1) | IAHC does not have sufficient input from the Internet community; the Internet Society is not a member oriented group, and its decisions cannot legitimately claim to be based on Internet community "consensus." | ||||||||||||
| (2) | IAHC's aggressive timelines are unjustified, especially given the lack of urgent technical problems. As recently as August 1996, it was deemed unlikely that the growth of the .com domain would pose any technical problems. | ||||||||||||
| (3) | IAHC's comment period was very short (2 weeks), and its extremely rapid implementation timeline does not allow for sufficient debate and generation of proposals for registrars. | ||||||||||||
| (4) | According to a brief filed by the World Internetworking Alliance <http://www.wia.org/pub/dns-brief.html>, the participation of international groups in the IAHC raises concerns regarding the legal nature of the IAHC proposal as an intergovernmental agreement. | ||||||||||||
| (5) | Despite the participation of ISOC, IAHC did not include substantial input from the community of Internet end-users. Furthermore, the IAHC's proposed bureaucracy is similarly lacking in community representation. | ||||||||||||
| (6) | IAHC is proceeding as if its proposal was thoroughly and completely accepted, including a Geneva MOU signing ceremony in early May 1997 and the continuation of plans to implement CORE-managed shared gTLDs in October 1997. However, this purported Internet consensus is not all clear. For instance, the Commercial Internet Exchange (CiX) <http://www.cix.org>, a consortium including members such as AT&T, CompuServe and MCI, has expressed reservations regarding the IAHC plan, and a new organization known as the Open Internet Congress (OIC) <http://www.interactivehq./org/oic/> has similarly raised objections to the closed, hasty and "top-down" nature of the IAHC process | ||||||||||||
| IV. |
CREATION OF NEW gTLDs In this Section, NTIA specifically seeks comment on whether new gTLDs should be established and whether there are any technical, practical and/or policy considerations that constrain the number of different gTLDs or the management of gTLDs. CPSR believes, as discussed in Section III above, that IAHC has developed a reasonable approach to the creation of new gTLDs, with different gTLDs signifying different uses of domains. Although this approach was driven more by the demands of existing registrars and trademark owners for TLD-based alternatives to domain-name disputes in the .com registry, in order to reduce pressures for litigation over .com domains, the concept of creating "special-purpose" gTLDs is an attractive one from the perspective of both Internet users and commercial businesses. (Whether or not the specific gTLDs developed by IAHC are appropriate or optimal is open to question, however.) |
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| A. | Creation of new gTLDs is not a necessary predicate to the introduction of competition into the DNS system. Existing gTLDs registries could be administered on a shared basis. There is no technical reason to create new gTLDs, but there is also no technical constraint (except the capacity of root servers and IP space) to the number of gTLDs that the Internet can support. Unlike the situation in the North American Numbering Plan for telephone numbers, IP resources, although finite, do not appear to be as anywhere near in such short supply as telephone numbers and area codes. The creation of new gTLDs should not, at least in the short run, create any undue stress on available IP resources. | ||||||||||||
| B. | Competitive provisioning of DNS is not sustainable if only new gTLDs are opened for shared administration. As discussed in Section V, the .com and other NSI-administered TLD registries are the product of the historic, US-government monopoly over gTLDs and NSI’s status as the "sole-source" government contractor for domain registrations in gTLDs. Extending this monopoly into an era of competitive DNS would allow one private, commercial entity to obtain the most currently valuable gTLDs. Competition in DNS is accordingly inconsistent with exclusive control of any gTLD, whether .com or a newly created gTLD. | ||||||||||||
| V. |
POLICIES FOR REGISTRIES In this Section, NTIA asks whether registrars should have exclusive control of a particular gTLD, whether shared and "exclusive" gTLDs can co-exist, whether there should be any threshold requirements for domain registrars, and whether there are any technical, business and/or policy constraints in light of IP number space or other issues on the number of domain registrars and how many domains any registrar can administer. NTIA also asks whether a registrar should be permitted to administer both exclusive and shared gTLDs. CPSR believes that monopoly control of any gTLD is antithetical to the interests of Internet users and to the long-run objectives for competitive, non-governmental administration of the Internet. NSI’s proposal for the retention of proprietary, so-called "brand" TLDs is a naked attempt to convert the public .com resource to its private, commercial property. There is no legal or policy justification for such an approach either in NSI’s existing NSF contractual rights or in the legitimate needs of Internet DNS administration. Whether or not new gTLDs can or should be created, all TLDs should be opened to competitive administration, and no TLD registrar should be entitled to maintain any proprietary interest in an "exclusive" TLD. |
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| A. | As a technical matter, exclusive and shared TLDs can co-exist, provided that all TLD administrators comply with industry standards for interoperability with the Internet root servers. | ||||||||||||
| B. | TLDs should not be subject to the exclusive control of any single registrar. NSI’s approach, under which new registrars would establish exclusive domains marketed commercially on a "branded" basis, ignores the proper status of domain names as globally unique identifiers for all users, both commercial and non-commercial (much like NANP telephone numbering resources). While both domain names and telephone numbers can and should be privately held, the higher-level resources (gTLDs and areas codes, respectively) are not the private property of any provider or entity. | ||||||||||||
| C. | Given commercialization of (and competition in) the Internet backbone, transport and access functions, DNS is the last bastion of government-funded, sole-source administration of the Internet. Neither NSI nor any other private entity can lay claim to convert the .com registry, which until recently was administered on a "cost-plus" contractual basis, into a private monopoly. NSI’s position that "[l]egitimate corporations will not invest time, stockholder capital and other resources in ‘shared’ brands," ignores the monopoly roots of the .com registry and is inconsistent with market realities. Already, many organizations and commercial ventures exist, in America and worldwide, that compete for registration services for .com domains to end users. Given the ubiquity and market recognition of the .com domain -- a product of its monopoly status rather than any special technical or business expertise of NSI -- NSI should not be permitted to transfer its NSF-contract role into a huge (as much as $35 million per year) financial windfall and commercial marketplace "head start" over competing TLD registrars. | ||||||||||||
| D. | NSI is correct, however, in critiquing IAHC’s initial proposal to artificially limit the number of gTLD registries to 28 and its continued efforts to impose "qualification" requirements (financial and otherwise) on applicants for registrar status. These restrictions may raise potentially serious antitrust concerns. In fact, there is no underlying need for any "awarding" of registration rights, since the only technical requirement for gTLD administration in a shared TLD environment is that each registrar follow industry specifications for reservation and assignment of domains and interoperate with the Internet root servers. Moreover, if root server administration is centralized, the consequences arising from the failure of any individual registrar to follow these standards (so long as any one registrar’s data could not contaminate the entire root server database) would be limited and localized -- its domain name holders would be unable receive Internet transactions (Web HTTP "hits" and electronic mail messages) from the larger Internet, but the interoperability and functionality of the Internet itself would remain uncompromised. Therefore, marketplace forces should be adequate to ensure that gTLD registrars operate in a technically efficient manner (although national consumer protection laws may need to be invoked against "rogue" or "sham" registries that engage in deceptive or fraudulent registration practices). | ||||||||||||
| VI. |
TRADEMARK ISSUES In this section, NTIA seeks comments on intellectual property issues (trademarks, etc.) on the Internet, including whether trademark rights, if any, should be protected on the Internet, whether domain registration should require any preliminary review of an application for potential trademark conflicts, and how trademark disputes regarding domain names should be resolved. CPSR strongly believes that the infusion of trademark issues, and trademark dispute resolution processes, into domain registration is a serious problem that should be corrected. Much of the impetus for the IAHC plan stems 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. Thus, given the role of WIPO and significant commercial trademark owners in IAHC, IAHC’s proposal quite naturally seeks to provide a single, internationally based procedure for arbitration of trademark disputes, coupled with mandatory waiting periods, that would substantially increase the ability of large corporate entities to chill smaller businesses and users from registering potentially infringing domain names. At the same time, much of the litigation against NSI has arisen not because of any inherent conflict between the domain registration process and trademark rights, but rather because NSI chose to insert itself as the mediator of disputes between trademark owners and domain holders by cutting off or threatening to terminate domain registrations on receipt of a complaint from a trademark holder. Finally, relative to the millions of domain names registered, there has been a trivial number of disputes, which should not lead to the imposition of a cumbersome, international and mandatory dispute resolution approach that will undoubtedly slow down the domain registration process for all Internet users. |
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| A. | DNS administration should be separated from trademark rights and intellectual property dispute resolution. gTLD registrars should not intervene in disputes between trademark owners and domain holders, but rather should refer disputes to the applicable national courts. The US government can 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. (CPSR notes that there is a significant line of domestic US trademark cases involving proprietary claims to telephone numbers, but that in none of these cases was the telephone company or other number assigning entity either sued or found liable for contributory infringement.) | ||||||||||||
| B. | There is no need for any international body of trademark law or supra-national forum for decision or arbitration of Internet-related trademark issue. Intellectual property rights have always varied on a nation-by-nation basis, and multinational corporations are experienced in dealing with the multiplicity of different trademark laws world-wide. Conversely, jurisdictional limits on the authority of national courts protect smaller registries and domain holders from being subject to suit in other nations over US-based domain activities. Simply put, in the absence of a multilateral treaty, trademark issues on the Internet, like other intellectual property rights, should be subject to the domestic laws of each affected nation. | ||||||||||||
| C. | Domain trademark conflicts can be prevented by use of trademark databases prior to registration of new domains. Although the information sources and operation of such databases are beyond CPSR’s expertise, we note that similar databases already exist in the US for both patents and trademarks and are commonly used by firms specializing in dealings with the PTO. While domain applications should continue to be processed on a first-come, first-served basis -- and no "entitlement" to a domain name should be required to be demonstrated by an applicant -- the cost and burden of changing domains in the face of a potentially infringing registration should be sufficient to persuade a reputable applicant to select a different domain in the first instance. So-called "pirate" applicants, whose registrations are an effort to extract financial concessions from trademark owners, can be dealt with adequately in the courts or, if the trademark owner finds it economically advantageous, through private settlements. | ||||||||||||
| D. | CPSR believes that the recent fascination of many parties with trademark rights to Internet domains is a short-run issue only. The desire of many commercial entities to obtain easily recognizable ".com" domains is a function of the inexperience of many Internet users -- novices typically type URLs into their browser -- and the relative unsophistication of WWW search engines. As user experience with the Internet increases, domains become progressively less important to navigation. Indeed, technology is already developing that may supplant DNS with other Internet "directory" services, whether intelligent agent-based search engines, "push" and "channel" technologies by which information is sent to users (instead of retrieved by them), IP-address based directories (e.g., LDAP), and the like. The important and competitively crucial matter of introducing competition to DNS administration should therefore not be held hostage to a quixotic desire to create a new, international law of Internet trademark rights or to perfect an "efficient" trademark dispute mechanism that displaces national courts, since the importance of literal or pneumonic domain names will likely decrease substantially as the Internet evolves and matures. | ||||||||||||
CONCLUSION
| Respectfully submitted, | |
| COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY | |
By: Glenn B. Manishin /s/ |
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| Aki Namioka, President Harry Hochheiser Andy Oram Computer Professionals for Social Responsibility <http://www.cpsr.org/home.html> P.O. Box 717 Palo Alto, CA 94302 415.322.3778 |
Glenn B. Manishin Michael D. Specht Christine A. Mailloux Blumenfeld & Cohen - Technology Law Group <http://www.technologylaw.com> 1615 M Street, N.W., Suite 700 Washington, D.C. 20036 202.955.6300 Counsel for CPSR |
Dated: August 18, 1997
Created before October 2004
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