Re: [ga] Comments on the Preliminary Report of Working Group A

[Bill Lovell <wsl@cerebalaw.com>]

At 03:53 AM 7/8/99 -0700, Dennis Schaefer wrote:

You've asked some of the right questions; whether you get any response 
should indicate the extent, if any, to which Working Group A has been 
captured by the big money, ecommerce, trademark holder interests and 
has ignored these legitimate issues.

Bill Lovell 
> 
>Working Group A obviously did a lot of work on this topic, and my concerns 
>below in no way diminish my appreciation of that fact. 
> 
>However, I am troubled that the preliminary conclusions of July 7, 1999 
>were confined to very specific subquestions which did not address the
broader 
>issues of appropriateness, fairness, and overall balance -- all of which 
>are essential to any attempt at democratic governance of the Internet. 
> 
>If ICANN were to adopt WIPO Section 3 including the commentaries of Working 
>Group A, it would be permitting its strong obligation to protect the 
>intellectual property rights of large businesses to overshadow its equally 
>strong obligation to protect the property of individuals and small 
>businesses. It would achieve this effect by having elevated domain names 
>to the status of trademarks. 
> 
>Domain names at present are not trademarks under US or international law. 
>They are a locator, like an address or a phone number, and they should be 
>given a commensurate level of respect and protection by ICANN. They are 
>both free speech and private property -- as well as a limited resource. 
> 
>The US Government is constrained from depriving anyone of these speech or
property 
>rights without meeting strict due process restrictions. While private,
ICANN is 
>acting in this instance as a government in that it is exerting absolute 
>control over a major channel of interstate commerce, and in so doing is 
>requiring individuals to waive their First and Fifth Amendment rights as a 
>condition of being permitted to speak and to conduct business on the 
>Internet. At the very least, ICANN should observe the same restraint as 
>the US Government, which in this case would not attempt this action without 
>a Constitutional amendment, specific Congressional authorization, or Senate 
>ratification of a treaty negotiated by the President. 
> 
>Raising domain names to the status of trademarks -- and thereby imposing
significant 
>restrictions on their use -- is something that only a government may do.
Without a 
>national or international mandate in hand, in my opinion, ICANN should
exercise 
>great caution before taking such a step. Moreover, it is not even
necessary to 
>broach this legal issue at this time simply to create a uniform dispute 
>procedure. Doing so could well harm ICANN at this crucial stage of its 
>existence. 
> 
> 
>In order to ensure that ICANN's policy does not unduly burden interstate 
>commerce , or violate the speech and property rights of small businesses 
>and individuals, I respectfully urge Working Group A to request the Names
Council 
>and the ICANN Board to acquire a legal review of the following 
>questions prior to issuing a formal recommendation: 
> 
>a) Does the proposed administrative dispute resolution procedure require the 
>consent of each national government whose intellectual property laws 
>do not currently classify domain names as trademarks? 
> 
>b) Can ICANN and WIPO request the General Assembly of the United Nations to 
>convene an international conference on the Law of the Internet for the
purpose of drafting an international 
>convention on domain names that is consistent with the national laws of
participating states? 
> 
>c) Does anything in the existing NSI dispute procedure preclude ICANN's 
>adoption of that procedure until ICANN has acquired a detailed analysis of 
>the legal considerations associated with direct intervention in trademark
law? 
> 
>Submitted with thanks to the members of Working Group A. 
> 
>Dennis Schaefer 
>d3nnis@mciworld.com 
>