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Re: [wg-c] More on the property status of TLDs
I agree with your main points. As an aside, the shopping mall analogy left
me flat. I wasn't sure whether the mall owner was, more appropriately,
ICANN, a registry, or even a registrar. It depends on how you look at it.
Also, I am slightly uncomfortable with the notion that ICANN "owns" the root
zone. I am unsure, but, for the moment, I prefer to view ICANN as
controlling the root zone on behalf of...the Internet community(?) At any
rate, these are minor points. I hope we can seriously take up the issue of
Rod Dixon, J.D., LL.M.
Visiting Assistant Professor of Law
Rutgers University School of Law - Camden
----- Original Message -----
From: Milton Mueller <email@example.com>
To: dnso wg-c <firstname.lastname@example.org>
Sent: Wednesday, August 04, 1999 5:00 PM
Subject: [wg-c] More on the property status of TLDs
> On the issue of "public resource" vs. "private property" here are some
> premises I think we can agree on:
> 1) Trademark owners have (delimited) property rights in names.
> 2) Any individual can set up a computer that resolves a domain name.
> The name space used by that computer is under the private control of
> the computer owner, and as such is an extension of the ownership of
> the computer. Those uses of names may be trumped, however, by the
> rights claimed in 1).
> 3) The basic issue we on this committee are concerned with is which
> TLD names get into the root zone administered by ICANN, and who
> operates them.
> 4) Building on point 3), but moving into territory where it might not
> be so easy to agree, I would go so far as to say that ICANN "owns" the
> legacy root zone (or it will, once the authority is fully transferred
> from the DoC/NTIA). By "ownership" I mean simply that ICANN has the
> right to decide what names go into it. It can use this as leverage to
> decide who operates them.
> 5) We should also be able to agree with the proposition that the root
> zone has special value due to network externalities--by which I mean
> its collective recognition as the ultimate place to go to find out
> where to resolve names that provide near-universal connectivity. So
> there is an important change in status when a computer operator
> mentioned in 2) above gets a name listed in the root zone.
> We can thus think of ICANN as the administrator of a valuable asset, a
> space with unique economic characteristics. It has multiple, sometimes
> mutually exclusive proposals coming to it about what should be
> admitted into that space. What registries should it admit and what
> rights should they have?
> 6) The property rights of entities that ICANN admits into its root
> space can run along a broad spectrum. At one end of the spectrum, The
> registry has no rights; they operate a database at the whim of ICANN,
> they have no exclusivity over the zone files, the registry is shared
> according to terms and conditions set by ICANN. At the other end of
> the spectrum, there is the model of proprietary registries who have an
> exclusive right to administer zone files and who contract with
> registrars on terms that they find suitable.
> There are many places in between, and I think it is extremely
> important to think of this as a spectrum, a range of choices, rather
> than as a binary choice. It is also useful to keep in mind that no one
> place on the spectrum is likely to be the "right" one for all
> applicatons and times.
> A useful analogy is a shopping mall. In admitting people into this
> space, the mall owner typically offers leases of a specified length at
> a specified rent. The relationship is not one-way. The value of the
> mall depends on what stores are present as much as the value of the
> store depends on being in the mall. Some leases are long-term, others
> are short-term; some are expensive, some are cheap. The price varies
> with market conditions.
> >From this it follows that ICANN cannot be cavalier or rigid about the
> terms it offers registries for entry into the root, if it wants to
> avoid eroding the value of its asset. It cannot, for example, say that
> a right to operate a registry can be withdrawn at any time, for any
> reason. Nor can it demand a King's ransom for the right to be
> Finally, if one accepts premise 1) (that TM owners have property
> rights in names) it is hard for me to understand why one would not
> also accept the premise underlying branded or exclusive TLDs. Indeed,
> it is a source of some befuddlement to me that many of the people on
> this list who are arguing loudest and longest in favor of the
> trademark owners' claims to reserve and protect names in the DNS are
> also those most vocal against branded TLDs.
> If the name space is a "public resource" then how and why can
> trademark owners claim protectable rights in any domain name? If
> exclusive rights to names in the DNS *can* be claimed, then why can't
> a registry operator establish such a claim by associating a TLD with
> commercial services and branding it?
> The contradiction is especially embarassing to those who support the
> exclusion of "famous and well known marks" from the name space. That
> is a form of name exclusivity, an extension of private property rights
> deep into the name space. Certain names across all TLDs are reserved
> on a global basis, regardless of commercial use or confusion, simply
> because they correspond to trademarked names. How is it that some
> people are willing to recognize this kind of a sweeping property claim
> with no basis in existing law, but react in horror when someone
> proposes a branded TLD, which is simply an extension of current
> trademark concepts to registry services?