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RE: [wg-b] Revised IPC Proposal

Additionally, the act of a trademark office rejecting a trademark
application would be the most common example of the denial of acquisition
of a right, pre-use.

At 03:41 PM 4/14/00 -0400, Hartman, Steve wrote:
>The law does provide for what you call "preemptive restraints" on the use of
>words in the form of preliminary injunctions in trademark infringement
>suits. (I cant' name one country where this isn't true, but there probably
>are some.) Prior restraints in the US of spoken and written words are
>extremely rare, but that applies to the use of words solely as language. The
>IPC proposal does not affect the use of words on a website.(And in other
>countries, Great Britain comes immediately to mind, prior restraint of the
>written word is not uncommon.)
>Steve Hartman
>> -----Original Message-----
>> From:	John Berryhill Ph.D. J.D. [SMTP:john@johnberryhill.com]
>> Sent:	Friday, April 14, 2000 1:55 PM
>> To:	mpalage@infonetworks.com; wg-b@dnso.org
>> Subject:	Re: [wg-b] Revised IPC Proposal
>> The following reflects the comments made by Richard Sexton and by me
>> during
>> the SBA teleconference yesterday.  I will polish it a bit and submit it as
>> an attachment to Mr. Palage.  If anyone wants to sign on, let me know, and
>> I
>> will send a final version around later today.
>> ---------draft comments-----------------
>> Mr. Menge,
>> Thank you for providing the opportunity for those concerned to present
>> their
>> views on the impact of proposed new gTLD provisions on small businesses,
>> and
>> for soliciting input into the upcoming SBA Office of Advocacy report.  The
>> following summarizes the two points that you had requested I send to you.
>> Unfortunately, my legal training causes my "summaries" to sometimes be
>> longer than the points themselves.  As far as getting consensus on a
>> compromise proposal, you can scroll to the Conclusion.
>> Point (1) - The Proposals Have No Basis In Technology Or Law
>> My 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.  Why should private individuals have greater power in the
>> context of potential civil liability?
>> These 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 I don't know what it is.  Technical concerns say (a)
>> domain
>> name allocations are to follow RFC1591 - firs come, first served and (b)
>> there is a need for a larger name space.  The Law says that violations of
>> private rights can be remedied after the fact.  The IPC/WG-B proposals do
>> not arise from valid technical or legal principles.
>> EricMengeIsaPedophile.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 utterances,
>> 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", "Criminal Solicitation Constituency", or
>> "Religious Constituency".  Why not?  Because these issues do not relate to
>> technical administration, which is the mandated mission of ICANN.  These
>> are
>> questions you can pass along to the GAO personnel studying the structural
>> and delegated authority aspects 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 fradulent 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 they 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
>> 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.
>> Point (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 I 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.  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 fuzzy beverage in a red can.  "Hmm.... must not be at
>> this domain name...."
>> Conclusion
>> You had floated the compromise proposal of a mixture of "chartered" versus
>> "non-chartered" TLDs, and how many of each there should be.  All I could
>> think of during that portion of the discussion is to consider 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 run the Internet, and WG-B does not have the legal sophistication to
>> re-write basic trademark law.  This is not how to run a computer network.
>> John Berryhill, Ph.D. esq
>> Philadelphia, Pennsylvania

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