John Berryhill, Ph.D. esq.
April 16, 2020
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(1) - The Exclusionary Proposals Have No Basis In Technology Or Law
These comments essentially boil down to the fundamental maxim of Law, "Where there is a right, there is a remedy." The ICANN Intellectual Property Constituency's various exclusion or "sunrise" proposals are not in accordance with the remedial nature of the Law. These proposals are for prospective, pre-emptive restraints of the kind that we do not permit our own government to exert in the enforcement of criminal law relating to the use of words. Even where an injunction is granted, an injunction is (a) directed to identifiable individuals, (b) for cause and (c) based on an adjudication of relative harms. Why should private individuals have greater power to pre-empt the actions of others to prevent potential civil liability when we do not grant government that power to prevent criminal violations?
A trademark gives the owner a right to seek a remedy for a violation of the trademark. Trademarks do not provide an automatic, a priori pre-emption of the use of alphanumeric characters in the real world. Trademark law has developed to balance various interests. There is no reason to provide a new kind of trademark right on the Internet which does not correspond to any principle of trademark law in the offline world.
The IPC proposals have perverted Law to "Where there is a right, there is a way to prevent people from violating it." That has never been the way Law functions in our society, and it has certainly never been the way the Internet functions. If it's not "technical administration", and if it is not "law", then what is it? Technical concerns say (a) domain name allocations are to follow RFC1591 - first come, first served and (b) there is a need for a larger name space. The Law says that RFC1591 has valid legal regulatory authority (as per the PGMedia decision of the DC Court of Appeals) and that violations of private rights can be remedied after the fact. The IPC proposals do not arise from valid technical or legal principles.
MichaelKirkIsaPedophile.com is libelous, and has legal consequences as a string of text.
HaveSexWithMeForMoney.com is a criminal solicitation.
TheHolocaustIsaJewishLie.com is likewise a criminal utterance, but in Germany, not the U.S.
MuhammadTheProphetAtePork.com is blasphemous and likely a capital offense in several countries.
Yet, despite these and other categories of legally significant alphanumeric character sequences, some even criminal in nature, nobody is proposing a prior restraint on them.
Trademark infringement is only a subset of a much larger category of legally-proscribable uses of alphanumeric characters. Why, among all forms of legally significant text strings, are trademarks singled out for a heretofore unknown pre-emptive right? Because ICANN, a technical body, has an "Intellectual Property Constituency" with non-technical concerns.
There is no "Libel Constituency", "Anti-Obscenity Constituency", "Criminal Solicitation Constituency", or "Religious Constituency". Why not? Because these issues do not relate to technical administration, which is the mandated mission of ICANN.
Despite the talk about the "importance of stability to the development of e-commerce", ICANN was not chartered to be about commerce or whatever else for which the internet might be used. They are supposed to be running narrow technical aspects of a computer network. "Do the bits get from one end of a wire to the other?" is not a legal question. Re-engineering the remedial principle of law as a proscriptive technical policy makes no sense.
Trademark infringement happens in telephone book listings. All kinds of shady folks get fraudulent telephone book listings, or use "Yellow Page" ads which infringe trademarks or convey a false or unfair commercial impression. These situations are dealt with all of the time by trademark lawyers. They are not dealt with by providing a pre-emptive famous name list or a sunrise period for telephone books. In fact, the makers of the telephone books are not held liable for these kinds of things. In the context of 800 number assignments, the FCC has decided that dealing with trademark issues is a job for trademark lawyers, and not for technology policy makers at the FCC. Why should ICANN be any different?
The DNS is a telephone book. It maps names to numbers in precisely the same way. Why is it that we manage to publish telephone books without difficulty? Why would we argue about adding a new telephone exchange in an area code, become concerned that the possibility of a greater number of telephone listings would provide more opportunities for trademark infringement, and suggest that it would subject the telephone book publishers to legal liability? Because they are ridiculous assertions. But somehow the analogous assertions are taken seriously in the context of the DNS.
Even when someone has successfully asserted a trademark right involving a telephone listing, the books themselves are not published again until a year later. The DNS can be altered within a matter of hours to reflect a succesful, and remedial, assertion of trademark rights. That serves the interests of IP owners even more efficiently than an analogous system -phone books - with which we have lived comfortably for years.
To make the picture even clearer. I can infringe trademarks with my business card, letterhead stationery or outdoor signs. But when I walk into the print shop, there is no IP daemon sitting on the shoulder of the printer with the job of determining what words I may or may not have imprinted on my business materials. I bear the legal consequences of my choice, but I am as free as anyone else to have my own business materials without having to wait outside during a "sunrise period" in which the "first among equals" negotiated what is to be left over for me to have.
And so we develop a Byzantine system of chartered and non-chartered TLDs, and a system of restrictions and lists and sunrise periods on top of that. The next day after I, a lowly individual, am allowed to register domain names with the great unwashed masses, I obtain generic.generic (in the new "generic" TLD). And the day after that I set up my server to resolve the URL: kodak.ibm.cocacola.generic.generic/kiddieporn.html . Then what did any of this nonsense buy for anyone other than delay and large expense account bills?
Bold prediction #1 - there will continue to be rampant intellectual property violations on the Internet.
Bold prediction #2 - there will be no way to prevent it, but there will remain remedies at law.
(2) - Artificial Constriction of the Name Space by the IPC is Hurting Small Business
There already are mechanisms to enforce trademark rights in cyberspace - the UDRP and the ACPA among them. Both of these mechanisms are available to anyone who can afford a lawyer, which, with the UDRP, includes many but not all small businesses. Genuine cybersquatting hurts small businesses in smaller gross monetary terms, but perhaps in larger proportionate terms for the affected businesses, than it does larger businesses.
However, when BigBusinessCo is faced with a squatter who has occupied BigBusinessCo.com, .net and .org, then BigBusinessCo can readily afford to get rid of the squatter. Joe's Fish Market is faced with a much larger problem, because they cannot so readily afford to do the same thing.
The presence of a large, and we mean very large, number of TLDs does two things to help Joe's Fish Market - it increases the cost of pre-emptive cybersquatting and it decreases the value of any one domain name occupied but not used.
If someone is sitting on the domain "cocacola.irrelevant", not producing any content at a corresponding website, and demanding thousands of dollars from Coca-Cola, then why would anyone, including Coca-Cola care? The commercial injury to Coca-Cola of a tiny vacant island in a sea of thousands of TLDs is approximately zero. In fact, it is actually zero. The squatter with his do-nothing domain name can pay annual registration fees to his heart's content and remain unnoticed and ignored.
Now, yes, there is such a thing as trademark infringement, but if the only thing one sees at a web site is "This Domain for Sale!" or "We Registered At Lousynames.com!" then what is the basis for any consumer to be confused about anything? They were looking for a brown fizzy beverage in a red can. "Hmm.... must not be at this domain name...."
Several have floated a compromise proposal of a mixture of "chartered" versus "non-chartered" TLDs, and how many of each there should be. The question of how many is comparable to the question of whether it would be a good idea to have a large quantity of even numbers or odd numbers. In fact, there is no good reason not to have an infinite supply of both. The mechanisms for restricting registrations according to various pre-emptive systems are flawed technically as they do not accord with RFC1591, and they are flawed legally as they do not accord with the remedial character of Law as we in the West have come to know it over a learning curve of hundreds of years. The IPC does not have the technical background to dictate how to run the Internet, and WG-B does not have the legal sophistication to re-write fundamental principles of trademark law, or law generally, in single weekend.
This is not how to run a computer network.
John Berryhill, Ph.D. esq
The following individuals endorse the comments above:
Mark C. Langston
Systems & Network Admin
San Jose, CA
publisher, The Cook Report
president, anycastNET Incorporated
@quasar Internet Solutions, Inc.
Image Online Design
Peter da Silva
Michael Brian Scher
Anthropologist, Attorney, Policy Analyst
International Congress of Independent Internet Users
SYNTHESIS:Law & Technology
M. Hope Aguilar
Blair P. Houghton
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