Answering a question - Was Re: [ga] Stolen domains...

[Karl Auerbach <karl@CaveBear.com>]

On Mon, 9 Dec 2002 Jsavirimuthu@aol.com wrote:

> > There are many who think that our Internet situation is somehow new and
> > unique.  It is not. The internet is not the first situation in which
> > people have had to deal with cross jurisdictional protection of perceived
> > rights....

> With regard to the above, colleagues (particularly those who have read
> Michael's commentary on the WIPO report) will recognise the following:

> The Domain Name System (DNS) has presented a set of problems for
> intellectual property policy, as well as a set of opportunities, that
> are perhaps unique in the historical development of the intellectual
> property system.  The problems arise from the spontaneous adaptation of
> a technical addressing systemto functions and purposes beyond those for
> which it was originally designed.

I'm not willing to immediately grant that DNS is unique.  Certainly when
the statute of Anne (in the early 1700's?) was enacted nobody had any
concept of sound recordings, semiconductor masks, or movies.

> In addition to providing a human friendly, reliable and stablerooting
> system, the DNS has given rise to identifiers that are used
> forcommercial, cultural, governmental, political and social purposes,
> both on the Internet itself and in similar contexts beyond the Internet.

I personally find it extremely unfortunate that DNS has been used in this
way.  DNS is not a good tool for this kind of use.  We have self
mesmorized ourselves about DNS and have established mechanisms such as
ICANN that have ossified our thinking about what it is that we really want
out of Internet directory systems.  Notice I said systems, plural, not
system, singlar. We need directory systems for the Internet that help
people to do what they want and need to do rather than tying everything to
the Procrustian iron bed of DNS and its limitations.

> Would I be right in inferring from your general view both on this email
> list and recent account of your thoughts in the newspaper article that
> we now have:

> (i) dissonance between theory and practice (ie ad hoc jurisprudence or
> in your words "amateur" rulings)

The UDRP was established by the intellectual property industry, for the
intellectual property industry, and exclusively for the benefit of the
intellectual property industry.  The UDRP was defined in isolation, and
indeed with disdain for, the interests of the public.  And the system that
applies the UDRP is worse, far worse.

> (ii) governance policy being informed by pragmatism rather than
> established "theoretical" arguments; consequently the "first come first
> served" rule becoming captured by the rent seeking conglomerates?

The word "pragmatism" is something that is context sensitive - what is
"pragmatic" to an captain of IP industry might be quite non-pragmatic to
someone who likes to read old books.

Good policy comes out of a well fought fight between all parties of
interest, bad policy comes out of single-interest fiats.  In ICANN we have
had selected "stakeholder" - pre-chosen groups who have been given the
right to define policy onto all of us.  Why has ICANN been formed so that
only those with the most focused financial interests have been allowed
into the forums of policy creation?  The rest of us are affected by these
policies, we are hurt by them, yet we are only allowed to endure those
policies, not to participate in their formation.

		--karl--

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