From: owner-wg-c-digest@dnso.org (WG-C-DIGEST) To: wg-c-digest@dnso.org Subject: WG-C-DIGEST V1 #70 Reply-To: Sender: owner-wg-c-digest@dnso.org Errors-To: owner-wg-c-digest@dnso.org Precedence: bulk WG-C-DIGEST Monday, April 3 2000 Volume 01 : Number 070 ---------------------------------------------------------------------- Date: Mon, 03 Apr 2000 09:06:19 -0400 From: "Kevin J. Connolly" Subject: Re: [wg-c] Working Group C agenda Dear Readers: There are several problems with the Shepard/Kleiman principles. First, at least one of the proponents (Kathy Kleiman) has stated (for instance, at the March 1 Small Business Administration round table on the future of the DNS and small businesses) that the principles are intended to be entirely optional, i.e., that no penalty would attach to a registry which declined to embrace any one or more of these principles. If that is so.....if the adoption or rejection or modification of the principles is a matter for each registry to consider as part of its business plan.....then this WG has no business dealing with them. Second, while the principles are nice-sounding, they are, in fact, fraught with a mixture of operational difficulty, practical lack of meaning, and D A N G E R!!! I recognize that I am probably in ful-dress Cassandra mode at this point, and while I rend my garment and cover myself in the ashes of Semele, yet I cannot still my fingers. The concept that a TLD should mean what it stands for is a good example of these problems. My distinguished cousin, o-taka-no-sama Robert Connelly, is no doubt aware that one of the more popular SLD delegations requested under .FIRM is "keep-it" and congeners thereof. Not exactly congruent with that the IAHC had in mind when it proposed that TLD. In the absence of a narrow and stringently-enforced charter, a gtld means whatever the users think it does. A narrow and stringently-enforced charter is not good business. A narrow charter reduces the number of SLD delegations that will be requested, thereby increasing the average cost per domain; and since average cost is about as good an approximation to marginal cost as we will ever find in the real world, an increased average cost means that the competitive market price to the end user is likewise increased. Strict enforcement of charters is likewise very expensive. Though I have yet to see a rigorous examination of the costs of strict enforcement, the cost of bringing a UDRP (an artifact of loose a priori enforcement) is not small. If we are to adopt a rule of stringent enforcement before registration, I daresay that the cost should not be less. This indicates that the cost of securing a SLD delegation would be on the order of $1,000.00, thereby creating some fairly high barriers to entry. We should be mindful that the internet establishment wants to do precisely this: raise the barrier to entry so high that no-one would ever think of obtaining their own SLD to use as a permanent e-mail address and family photo album; raise the barrier so high that mom-and-pop operations will not presume to try to create the same kind of internet image as the big guys. Moreover, this little review does not even attempt to factor in the need to develop a litigation war chest, and it goes without saying that new TLD registries will need to prepare their legal strategies carefully. There will be at least two serious challenges to strict prequalification of SLD delegations: one from the civil libertarian elements of US society, which reacts frontally to anything which can be characterized as restraint of free speech. The second challenge will be economically driven, and come from the name-hoard/ cybergrab industry. I don't care to try to guess at the cost of defending the system, but it won't be cheap. A conservative estimate is on the order of $10E6. NSI has consistently avoided being held liable as a secondary infringer of trademarks precisely because it exercises no prior scrutiny before delegating a second level domain. Apart from the fact that the Shepard/Kleiman principles sound nice, there is no good reason to adopt them. There is, however, a darned tootin' good reason to avoid them. Timeo danaos et dona ferentes. I fear the Greeks, even when they bear gifts. The principles are a Trojan Horse. Consider the source thereof: WG-B. I shudder in horror. Once we adopt the idea that registrars or registries or registrants hold a domain out as meaning something, and that that holding-out is a part of the process of obtaining a delegation, we have let Odysseus into the walls of Illion, and we will have let a legion of hungry lawsharks into the DNS. The competitive disadvantage that the new gtlds will face vis a vis com/net/org (which make no such pretense and therefore will not be sued into oblivion for failure to enforce the principles) will swamp the new gtlds. By the way, I do not condemn the authors of the principles as being as wily and crafty as Odysseus. They have engaged in an exercise which has great interest. I simply believe that the adoption of the principles, or of any similar prior restraint on the operations of new gtld registries, is suicidal. Kevin J. Connolly The opinions expressed are those of the author, not of Robinson Silverman Pearce Aronsohn & Berman LLP This note is not legal advice. If it were, it would come with an invoice. As usual, please disregard the trailer which follows. ********************************************************************** The information contained in this electronic message is confidential and is or may be protected by the attorney-client privilege, the work product doctrine, joint defense privileges, trade secret protections, and/or other applicable protections from disclosure. If the reader of this message is not the intended recipient, you are hereby notified that any use, dissemination, distribution or reproduction of this com- munication is strictly prohibited. If you have received this communi- cation in error, please immediately notify us by calling our Help Desk at 212-541-2000 ext.3314, or by e-mail to helpdesk@rspab.com ********************************************************************** ------------------------------ Date: Mon, 3 Apr 2000 10:04:52 -0400 From: "Winer, Jonathan" Subject: RE: [wg-c] Working Group C agenda At 11:14 30-03-2000 -0500, Jonathan Weinberg wrote: > [1] Is it useful, as a general matter, for us to agree on some meaningful set of principles to guide the relevant ICANN body or process in selecting new TLDs or TLD registry/pairs? It seems to me that, in the context of the last consensus call, most folks indicated that their answer was YES. To WGC: I vote yes. Re the Sheppard/Kleinman principles, I endorse them, they are better than anything else anyone has offered to incorporate the various equities. Regards, JMW NOTICE: This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (404-881-7000) or by electronic mail (postmaster@alston.com), and delete this message and all copies and backups thereof. Thank you. ======================================================= ------------------------------ Date: Mon, 03 Apr 2000 23:04:50 +0900 From: "Robert F. Connelly" Subject: Re: [wg-c] Working Group C agenda At 09:06 03-04-2000 -0400, Kevin J. Connolly wrote: >My distinguished cousin, o-taka-no-sama Robert Connelly, is no doubt >aware that one of the more popular SLD delegations requested under .FIRM >is "keep-it" and congeners thereof. Not exactly congruent with that the >IAHC had in mind when it proposed that TLD. Dear Kevin: What about .arts? Someone wanted to have a single character domain under .arts, I think it was "f";-} Regards, BobC ------------------------------ Date: Mon, 3 Apr 2000 10:09:19 -0400 (EDT) From: "Ross Wm. Rader" Subject: Re: [Re: [RE: [wg-c] Excellent suggestion from slashdot -- apparently] On 3 Apr 2000, Richard wrote: > So, while I certainly agree that a logo is a great idea, the reality is that > the DNS name is by far more recognized. It may not be how it was intended to > be used, but there it is. Then why not request a customer version of IIS and IE5 be created to ensure that the content is legit for the banks, or us Realnames or, or, or... I've always maintained that DNS is a protocol that is 10% technical in nature and 90% political. To layer business processes into this doesn't bode well for the work ahead of us. Thanks, - -RWR - -------------------------------------------------------------- Ross Wm. Rader http://www.domaindirect.com Director, Assigned Names Division http://www.opensrs.org TUCOWS.com Inc. http://www.domainwatch.com ross@tucows.com http://www.domainsurfer.com - -------------------------------------------------------------- t. (416) 531-2697 x 335 f. (416) 531-5584 - ----------------"Because-People-Need-Names"------------------- ------------------------------ Date: Mon, 03 Apr 2000 10:17:09 -0400 From: Jonathan Weinberg Subject: [wg-c] S/K principles [Was: Working Group C agenda] Let's talk about this. 1. My understanding of the idea behind the S/K principles is that they would indeed be used by the relevant ICANN body or process to guide its selection of new TLDs or TLD/registry pairs. If that's not right, then I'd appreciate it if Philip or Kathy would let me know forthwith. (If the principles aren't intended to have some meaning as part of ICANN's decisional process, then I'm not sure what we're doing considering them.) 2. The actual language in the S/K principles that goes to the question of enforcement is #1: "a gTLD should give the net user confidence that it stands for what it purports to stand for." My understanding of that language, based on various folks' exchanges with Philip on this list, is that ICANN would expect a new TLD to have some mechanism (pre- or post- registration) to eliminate SLD registrations that are inconsistent with "what [the gTLD] purports to stand for." Philip has indicated that the language is consistent with having a new TLD that is open, and therefore "stands for" unrestricted content, but presumably a TLD that indicates in its charter that it "stands for" something narrower would have to have some mechanism to enforce that by excluding SLD registrants. There's been some debate on the list as to how costly this would be, but I think Kevin raises a more basic issue that I'd like to see discussed: Is this a good model for the name space, or a bad one? *Should* most new TLDs have such mechanisms? There are some who argue that the best, bottom-up, user-driven structure for the name space will be created by allowing users to register where they want, and thus to define the name space in the ways most meaningful to them. There are others who argue that that such an approach would interfere with attempts to add value through the structure of the name space, and would allow some registrants to destroy the utility of the name space for others. Using Kevin's example, they urge that .FIRM can add value only if a user can deduce from a registrant's presence in that portion of the name space that it is in fact a limited-liability corporation (say), and not an unincorporated pornographer. I suspect that this is one of the most important issues underlying the S/K principles. What do people think? Jon Jonathan Weinberg co-chair, WG-C weinberg@msen.com At 09:06 AM 4/3/00 -0400, Kevin J. Connolly wrote: >Dear Readers: > >There are several problems with the Shepard/Kleiman principles. > >First, at least one of the proponents (Kathy Kleiman) >has stated (for instance, at the March 1 Small Business Administration >round table on the future of the DNS and small businesses) that >the principles are intended to be entirely optional, i.e., that no penalty >would attach to a registry which declined to embrace any one or more >of these principles. If that is so.....if the adoption or rejection or modification >of the principles is a matter for each registry to consider as part of its business >plan.....then this WG has no business dealing with them. > >Second, while the principles are nice-sounding, they are, in fact, fraught >with a mixture of operational difficulty, practical lack of meaning, and > >D A N G E R!!! I recognize that I am probably in ful-dress Cassandra mode >at this point, and while I rend my garment and cover myself in the ashes of >Semele, yet I cannot still my fingers. > >The concept that a TLD should mean what it stands for is a good example >of these problems. > >My distinguished cousin, o-taka-no-sama Robert Connelly, is no doubt >aware that one of the more popular SLD delegations requested under .FIRM >is "keep-it" and congeners thereof. Not exactly congruent with that the >IAHC had in mind when it proposed that TLD. > >In the absence of a narrow and stringently-enforced charter, a gtld means >whatever the users think it does. A narrow and stringently-enforced charter >is not good business. > >A narrow charter reduces the number of SLD delegations that will be >requested, thereby increasing the average cost per domain; and since >average cost is about as good an approximation to marginal cost as >we will ever find in the real world, an increased average cost means >that the competitive market price to the end user is likewise increased. > >Strict enforcement of charters is likewise very expensive. Though I have yet >to see a rigorous examination of the costs of strict enforcement, the cost of >bringing a UDRP (an artifact of loose a priori enforcement) is not small. If we >are to adopt a rule of stringent enforcement before registration, I daresay that >the cost should not be less. This indicates that the cost of securing a SLD >delegation would be on the order of $1,000.00, thereby creating some >fairly high barriers to entry. We should be mindful that the internet establishment >wants to do precisely this: raise the barrier to entry so high that no-one would >ever think of obtaining their own SLD to use as a permanent e-mail address and >family photo album; raise the barrier so high that mom-and-pop operations will >not presume to try to create the same kind of internet image as the big guys. > >Moreover, this little review does not even attempt to factor in the need to >develop a litigation war chest, and it goes without saying that new TLD registries >will need to prepare their legal strategies carefully. > >There will be at least two serious challenges to strict prequalification of SLD >delegations: one from the civil libertarian elements of US society, which reacts >frontally to anything which can be characterized as restraint of free speech. The >second challenge will be economically driven, and come from the name-hoard/ >cybergrab industry. I don't care to try to guess at the cost of defending the system, >but it won't be cheap. A conservative estimate is on the order of $10E6. > >NSI has consistently avoided being held liable as a secondary infringer of trademarks >precisely because it exercises no prior scrutiny before delegating a second level >domain. Apart from the fact that the Shepard/Kleiman principles sound nice, there >is no good reason to adopt them. There is, however, a darned tootin' good reason >to avoid them. > >Timeo danaos et dona ferentes. I fear the Greeks, even when they bear gifts. >The principles are a Trojan Horse. Consider the source thereof: WG-B. I >shudder in horror. Once we adopt the idea that registrars or registries or registrants hold a >domain out as meaning something, and that that holding-out is a part of the process >of obtaining a delegation, we have let Odysseus into the walls of Illion, and we will >have let a legion of hungry lawsharks into the DNS. The competitive disadvantage >that the new gtlds will face vis a vis com/net/org (which make no such pretense and >therefore will not be sued into oblivion for failure to enforce the principles) will swamp >the new gtlds. > >By the way, I do not condemn the authors of the principles as being as wily and crafty >as Odysseus. They have engaged in an exercise which has great interest. I simply >believe that the adoption of the principles, or of any similar prior restraint on the >operations of new gtld registries, is suicidal. > >Kevin J. Connolly >The opinions expressed are those of the author, not of Robinson Silverman Pearce >Aronsohn & Berman LLP >This note is not legal advice. If it were, it would come with an invoice. >As usual, please disregard the trailer which follows. >********************************************************************** >The information contained in this electronic message is confidential >and is or may be protected by the attorney-client privilege, the work >product doctrine, joint defense privileges, trade secret protections, >and/or other applicable protections from disclosure. If the reader of >this message is not the intended recipient, you are hereby notified >that any use, dissemination, distribution or reproduction of this com- >munication is strictly prohibited. If you have received this communi- >cation in error, please immediately notify us by calling our Help Desk >at 212-541-2000 ext.3314, or by e-mail to helpdesk@rspab.com >********************************************************************** > > ------------------------------ Date: Mon, 03 Apr 2000 10:33:15 -0400 From: Milton Mueller Subject: Re: [wg-c] Excellent suggestion from slashdot -- apparently not i n 10-23 report Andrew: Functionally, the entire name space is global. This is true regardless of whether the character string at the end (e.g., .au) refers to a specific country or not. Therefore, I see nothing wrong in having character strings in the top level that refer to regions, or companies, or country-specific services. The decision should be driven by consumer demand, not by preconceived notions of mapping the name space onto political geography. - --MM Andrew Dalgleish wrote: > [Andrew Dalgleish] > > What I don't understand is why we need TLDs in the form ".xxbanks" > (where xx is the country code). > > Surely this should be handled under the relevant ccTLD? > (such that ".usbanks" becomes ".banks.us"). > > This would allow each country to regulate their own segment of the > domain name space, according to local needs and regulations. > > Keep all country-specific domains out of the global name-space. > (This applies to *all* countries, not just the USA.) > > Regards, > Andrew Dalgleish ------------------------------ Date: Mon, 03 Apr 2000 11:14:04 -0400 From: Eric Brunner Subject: Re: [wg-c] Working Group C agenda > ... ".arts" There was an application (mercifully declined) for a delegation of the sub-domain "k" under the "iwi" (Maori) SLD of the "nz" ccTLD. Cheers, Eric ------------------------------ Date: 3 Apr 00 11:33:45 EDT From: Richard Subject: Re: [Re: [Re: [RE: [wg-c] Excellent suggestion from slashdot -- apparently]] That is another option; a secure site or mechanism, and that might work. Certainly a combination of functions embodied by the NSI/Verisign confluence would address this directly. While looking around for decent sld names, we found that all the most obvious ones in .com had long been taken. We don't have right of eminent domain (sp?) so can't kick folks out of their names. Maybe we'll try the resolution procedures or something like that. Borrowing from another post, the SK principles embody exactly what we'd like to achieve: "The actual language in the S/K principles that goes to the question of enforcement is #1: "a gTLD should give the net user confidence that it stands for what it purports to stand for." " Ergo, this particular idea of a chartered TLD seems to fit the working groups goals even if not exactly stated that way. The proposal of 6-9 new gTLDs might work and everyone will cooperate to keep the registries accurate to their intended purposes,and maybe not, politics being what it is. But I do know that we could enforce and keep the registry accurate to its charter. It would seem to me that very controlled chartered TLDs would not effect the technical part of the DNS very much at all, but at that I"m a complete neophyte. "Ross Wm. Rader" wrote: > On 3 Apr 2000, Richard wrote: > > > So, while I certainly agree that a logo is a great idea, the reality is that > > the DNS name is by far more recognized. It may not be how it was intended to > > be used, but there it is. > > Then why not request a customer version of IIS and IE5 be created to > ensure that the content is legit for the banks, or us Realnames or, or, > or... > > I've always maintained that DNS is a protocol that is 10% technical in > nature and 90% political. To layer business processes into this doesn't > bode well for the work ahead of us. > > Thanks, > > -RWR > > > > -------------------------------------------------------------- > Ross Wm. Rader http://www.domaindirect.com > Director, Assigned Names Division http://www.opensrs.org > TUCOWS.com Inc. http://www.domainwatch.com > ross@tucows.com http://www.domainsurfer.com > -------------------------------------------------------------- > t. (416) 531-2697 x 335 f. (416) 531-5584 > ----------------"Because-People-Need-Names"------------------- ____________________________________________________________________ Get free email and a permanent address at http://www.amexmail.com/?A=1 ------------------------------ Date: Mon, 3 Apr 2000 11:39:26 -0400 From: "Rod Dixon, J.D., LL.M." Subject: RE: [wg-c] S/K principles [Was: Working Group C agenda] 1. I am inclined to agree that we abandon principles that, in fact, are not recommendations to the DNSO. 2. IMHO, to some extent our debates have made these issues far more complex than they need be, given the limited task that we have undertaken. It seems to me that whether a TLD actually stands for what it purports to be is a marketplace issue, not a governance matter. As long as the barrier to entry is reasonably low so that open competition exists in the TLD namesspace (and among registries), ICANN should be reasonably satisfied that it as done its job regarding new gTLDs. I am convinced more than ever that ICANN's focus ought to be fixated on a limited set of governance and technical matters, and that this working group should be guided by that principle. Rod > -----Original Message----- > From: owner-wg-c@dnso.org [mailto:owner-wg-c@dnso.org]On Behalf Of > Jonathan Weinberg > Sent: Monday, April 03, 2000 10:17 AM > To: Kevin J. Connolly; wg-c@dnso.org > Subject: [wg-c] S/K principles [Was: Working Group C agenda] > > > Let's talk about this. > > 1. My understanding of the idea behind the S/K principles > is that they > would indeed be used by the relevant ICANN body or process to guide its > selection of new TLDs or TLD/registry pairs. If that's not > right, then I'd > appreciate it if Philip or Kathy would let me know forthwith. (If the > principles aren't intended to have some meaning as part of ICANN's > decisional process, then I'm not sure what we're doing considering them.) > > 2. The actual language in the S/K principles that goes to > the question of > enforcement is #1: "a gTLD should give the net user confidence that it > stands for what it purports to stand for." My understanding of that > language, based on various folks' exchanges with Philip on this list, is > that ICANN would expect a new TLD to have some mechanism (pre- or post- > registration) to eliminate SLD registrations that are inconsistent with > "what [the gTLD] purports to stand for." Philip has indicated that the > language is consistent with having a new TLD that is open, and therefore > "stands for" unrestricted content, but presumably a TLD that indicates in > its charter that it "stands for" something narrower would have to > have some > mechanism to enforce that by excluding SLD registrants. > > There's been some debate on the list as to how costly this > would be, but I > think Kevin raises a more basic issue that I'd like to see discussed: Is > this a good model for the name space, or a bad one? *Should* > most new TLDs > have such mechanisms? There are some who argue that the best, bottom-up, > user-driven structure for the name space will be created by allowing users > to register where they want, and thus to define the name space in the ways > most meaningful to them. There are others who argue that that such an > approach would interfere with attempts to add value through the structure > of the name space, and would allow some registrants to destroy the utility > of the name space for others. Using Kevin's example, they urge that .FIRM > can add value only if a user can deduce from a registrant's presence in > that portion of the name space that it is in fact a limited-liability > corporation (say), and not an unincorporated pornographer. > > I suspect that this is one of the most important issues > underlying the S/K > principles. What do people think? > > Jon > > > Jonathan Weinberg > co-chair, WG-C > weinberg@msen.com > > > At 09:06 AM 4/3/00 -0400, Kevin J. Connolly wrote: > >Dear Readers: > > > >There are several problems with the Shepard/Kleiman principles. > > > >First, at least one of the proponents (Kathy Kleiman) > >has stated (for instance, at the March 1 Small Business Administration > >round table on the future of the DNS and small businesses) that > >the principles are intended to be entirely optional, i.e., that > no penalty > >would attach to a registry which declined to embrace any one or more > >of these principles. If that is so.....if the adoption or rejection or > modification > >of the principles is a matter for each registry to consider as > part of its > business > >plan.....then this WG has no business dealing with them. > > > >Second, while the principles are nice-sounding, they are, in > fact, fraught > >with a mixture of operational difficulty, practical lack of meaning, and > > > >D A N G E R!!! I recognize that I am probably in ful-dress > Cassandra mode > >at this point, and while I rend my garment and cover myself in > the ashes of > >Semele, yet I cannot still my fingers. > > > >The concept that a TLD should mean what it stands for is a good example > >of these problems. > > > >My distinguished cousin, o-taka-no-sama Robert Connelly, is no doubt > >aware that one of the more popular SLD delegations requested under .FIRM > >is "keep-it" and congeners thereof. Not exactly congruent with that the > >IAHC had in mind when it proposed that TLD. > > > >In the absence of a narrow and stringently-enforced charter, a > gtld means > >whatever the users think it does. A narrow and > stringently-enforced charter > >is not good business. > > > >A narrow charter reduces the number of SLD delegations that will be > >requested, thereby increasing the average cost per domain; and since > >average cost is about as good an approximation to marginal cost as > >we will ever find in the real world, an increased average cost means > >that the competitive market price to the end user is likewise increased. > > > >Strict enforcement of charters is likewise very expensive. Though I have > yet > >to see a rigorous examination of the costs of strict > enforcement, the cost of > >bringing a UDRP (an artifact of loose a priori enforcement) is not small. > If we > >are to adopt a rule of stringent enforcement before registration, I > daresay that > >the cost should not be less. This indicates that the cost of > securing a SLD > >delegation would be on the order of $1,000.00, thereby creating some > >fairly high barriers to entry. We should be mindful that the internet > establishment > >wants to do precisely this: raise the barrier to entry so high that > no-one would > >ever think of obtaining their own SLD to use as a permanent > e-mail address > and > >family photo album; raise the barrier so high that mom-and-pop operations > will > >not presume to try to create the same kind of internet image as > the big guys. > > > >Moreover, this little review does not even attempt to factor in > the need to > >develop a litigation war chest, and it goes without saying that new TLD > registries > >will need to prepare their legal strategies carefully. > > > >There will be at least two serious challenges to strict prequalification > of SLD > >delegations: one from the civil libertarian elements of US > society, which > reacts > >frontally to anything which can be characterized as restraint of free > speech. The > >second challenge will be economically driven, and come from the > name-hoard/ > >cybergrab industry. I don't care to try to guess at the cost of > defending > the system, > >but it won't be cheap. A conservative estimate is on the order of $10E6. > > > >NSI has consistently avoided being held liable as a secondary > infringer of > trademarks > >precisely because it exercises no prior scrutiny before delegating a > second level > >domain. Apart from the fact that the Shepard/Kleiman principles sound > nice, there > >is no good reason to adopt them. There is, however, a darned > tootin' good > reason > >to avoid them. > > > >Timeo danaos et dona ferentes. I fear the Greeks, even when > they bear gifts. > >The principles are a Trojan Horse. Consider the source thereof: > WG-B. I > >shudder in horror. Once we adopt the idea that registrars or registries > or registrants hold a > >domain out as meaning something, and that that holding-out is a part of > the process > >of obtaining a delegation, we have let Odysseus into the walls of Illion, > and we will > >have let a legion of hungry lawsharks into the DNS. The competitive > disadvantage > >that the new gtlds will face vis a vis com/net/org (which make no such > pretense and > >therefore will not be sued into oblivion for failure to enforce the > principles) will swamp > >the new gtlds. > > > >By the way, I do not condemn the authors of the principles as being as > wily and crafty > >as Odysseus. They have engaged in an exercise which has great interest. > I simply > >believe that the adoption of the principles, or of any similar prior > restraint on the > >operations of new gtld registries, is suicidal. > > > >Kevin J. Connolly > >The opinions expressed are those of the author, not of Robinson Silverman > Pearce > >Aronsohn & Berman LLP > >This note is not legal advice. If it were, it would come with > an invoice. > >As usual, please disregard the trailer which follows. > >********************************************************************** > >The information contained in this electronic message is confidential > >and is or may be protected by the attorney-client privilege, the work > >product doctrine, joint defense privileges, trade secret protections, > >and/or other applicable protections from disclosure. If the reader of > >this message is not the intended recipient, you are hereby notified > >that any use, dissemination, distribution or reproduction of this com- > >munication is strictly prohibited. If you have received this communi- > >cation in error, please immediately notify us by calling our Help Desk > >at 212-541-2000 ext.3314, or by e-mail to helpdesk@rspab.com > >********************************************************************** > > > > > ------------------------------ Date: Mon, 3 Apr 2000 11:52:16 -0400 From: "Winer, Jonathan" Subject: RE: [wg-c] S/K principles [Was: Working Group C agenda] 1) You never have universal compliance with any rules. That does not make the rules useless. Social scientists have documented, for example, that the average person drives slower when there are speed limit signs posted, even when the police do not appear to be around. If the test were "have we eliminated speeding?" the limits clearly fail. If the test is, "do they save lives and reduce accidents," they are clearly of some substantial value. 2) If .firm means something commercial, unusual uses of prefixes in front of the GTLD will, pardon the expression, stick out like a sore thumb. They may or may not be worth delisting by the domain registry, I guess it depends on how the registry feels about the adult video store in the suburban shopping mall next to the Baskin Robbins and the GAP. Ditto t.art, as a site for putains, or b.art as a site for Matt Groening characters. Some registrars may gain the reputation of being tough, even puritanical, in this area; others so loose as to accept e-graffiti spray painted randomly on their domains (see George Carlin's 7 dirty words, add in racial epithets, slurs on sexual orientation, domain names based on the writings of Joseph Goebbels). Kind of like neighborhoods in the off-line world. You decide which one you want to live in. You decide where "property values" are likely to appreciate over time. If you want to live in the low-rent district and that meets your needs, pay less rent. If the penthouse view's desired, you pay more. Isn't this what the world of AOL is all about? 3) Compliance with rules is a mixture of social norms and preferences and the occasional enforcement action to remind abusers that there is a price to pay for ignoring those norms that meet the needs of the many. So long as the enforcement action is reasonable and proportional, it will wind up being supported by the community. If it isn't, it will not be sustainable. 4) In short, S/K is a workable beginning place, likely to be largely self-enforcing, and to find a home in the marketplace if the principles are given a reasonable start in life. - -----Original Message----- From: Jonathan Weinberg [mailto:weinberg@mail.msen.com] Sent: Monday, April 03, 2000 10:17 AM To: Kevin J. Connolly; wg-c@dnso.org Subject: [wg-c] S/K principles [Was: Working Group C agenda] Let's talk about this. 1. My understanding of the idea behind the S/K principles is that they would indeed be used by the relevant ICANN body or process to guide its selection of new TLDs or TLD/registry pairs. If that's not right, then I'd appreciate it if Philip or Kathy would let me know forthwith. (If the principles aren't intended to have some meaning as part of ICANN's decisional process, then I'm not sure what we're doing considering them.) 2. The actual language in the S/K principles that goes to the question of enforcement is #1: "a gTLD should give the net user confidence that it stands for what it purports to stand for." My understanding of that language, based on various folks' exchanges with Philip on this list, is that ICANN would expect a new TLD to have some mechanism (pre- or post- registration) to eliminate SLD registrations that are inconsistent with "what [the gTLD] purports to stand for." Philip has indicated that the language is consistent with having a new TLD that is open, and therefore "stands for" unrestricted content, but presumably a TLD that indicates in its charter that it "stands for" something narrower would have to have some mechanism to enforce that by excluding SLD registrants. There's been some debate on the list as to how costly this would be, but I think Kevin raises a more basic issue that I'd like to see discussed: Is this a good model for the name space, or a bad one? *Should* most new TLDs have such mechanisms? There are some who argue that the best, bottom-up, user-driven structure for the name space will be created by allowing users to register where they want, and thus to define the name space in the ways most meaningful to them. There are others who argue that that such an approach would interfere with attempts to add value through the structure of the name space, and would allow some registrants to destroy the utility of the name space for others. Using Kevin's example, they urge that .FIRM can add value only if a user can deduce from a registrant's presence in that portion of the name space that it is in fact a limited-liability corporation (say), and not an unincorporated pornographer. I suspect that this is one of the most important issues underlying the S/K principles. What do people think? Jon Jonathan Weinberg co-chair, WG-C weinberg@msen.com At 09:06 AM 4/3/00 -0400, Kevin J. Connolly wrote: >Dear Readers: > >There are several problems with the Shepard/Kleiman principles. > >First, at least one of the proponents (Kathy Kleiman) >has stated (for instance, at the March 1 Small Business Administration >round table on the future of the DNS and small businesses) that >the principles are intended to be entirely optional, i.e., that no penalty >would attach to a registry which declined to embrace any one or more >of these principles. If that is so.....if the adoption or rejection or modification >of the principles is a matter for each registry to consider as part of its business >plan.....then this WG has no business dealing with them. > >Second, while the principles are nice-sounding, they are, in fact, fraught >with a mixture of operational difficulty, practical lack of meaning, and > >D A N G E R!!! I recognize that I am probably in ful-dress Cassandra mode >at this point, and while I rend my garment and cover myself in the ashes of >Semele, yet I cannot still my fingers. > >The concept that a TLD should mean what it stands for is a good example >of these problems. > >My distinguished cousin, o-taka-no-sama Robert Connelly, is no doubt >aware that one of the more popular SLD delegations requested under .FIRM >is "keep-it" and congeners thereof. Not exactly congruent with that the >IAHC had in mind when it proposed that TLD. > >In the absence of a narrow and stringently-enforced charter, a gtld means >whatever the users think it does. A narrow and stringently-enforced charter >is not good business. > >A narrow charter reduces the number of SLD delegations that will be >requested, thereby increasing the average cost per domain; and since >average cost is about as good an approximation to marginal cost as >we will ever find in the real world, an increased average cost means >that the competitive market price to the end user is likewise increased. > >Strict enforcement of charters is likewise very expensive. Though I have yet >to see a rigorous examination of the costs of strict enforcement, the cost of >bringing a UDRP (an artifact of loose a priori enforcement) is not small. If we >are to adopt a rule of stringent enforcement before registration, I daresay that >the cost should not be less. This indicates that the cost of securing a SLD >delegation would be on the order of $1,000.00, thereby creating some >fairly high barriers to entry. We should be mindful that the internet establishment >wants to do precisely this: raise the barrier to entry so high that no-one would >ever think of obtaining their own SLD to use as a permanent e-mail address and >family photo album; raise the barrier so high that mom-and-pop operations will >not presume to try to create the same kind of internet image as the big guys. > >Moreover, this little review does not even attempt to factor in the need to >develop a litigation war chest, and it goes without saying that new TLD registries >will need to prepare their legal strategies carefully. > >There will be at least two serious challenges to strict prequalification of SLD >delegations: one from the civil libertarian elements of US society, which reacts >frontally to anything which can be characterized as restraint of free speech. The >second challenge will be economically driven, and come from the name-hoard/ >cybergrab industry. I don't care to try to guess at the cost of defending the system, >but it won't be cheap. A conservative estimate is on the order of $10E6. > >NSI has consistently avoided being held liable as a secondary infringer of trademarks >precisely because it exercises no prior scrutiny before delegating a second level >domain. Apart from the fact that the Shepard/Kleiman principles sound nice, there >is no good reason to adopt them. There is, however, a darned tootin' good reason >to avoid them. > >Timeo danaos et dona ferentes. I fear the Greeks, even when they bear gifts. >The principles are a Trojan Horse. Consider the source thereof: WG-B. I >shudder in horror. Once we adopt the idea that registrars or registries or registrants hold a >domain out as meaning something, and that that holding-out is a part of the process >of obtaining a delegation, we have let Odysseus into the walls of Illion, and we will >have let a legion of hungry lawsharks into the DNS. The competitive disadvantage >that the new gtlds will face vis a vis com/net/org (which make no such pretense and >therefore will not be sued into oblivion for failure to enforce the principles) will swamp >the new gtlds. > >By the way, I do not condemn the authors of the principles as being as wily and crafty >as Odysseus. They have engaged in an exercise which has great interest. I simply >believe that the adoption of the principles, or of any similar prior restraint on the >operations of new gtld registries, is suicidal. > >Kevin J. Connolly >The opinions expressed are those of the author, not of Robinson Silverman Pearce >Aronsohn & Berman LLP >This note is not legal advice. 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