[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
Re: [ga] Comments on the Preliminary Report of Working Group A
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.
>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
>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
>rights without meeting strict due process restrictions. While private,
>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
>restrictions on their use -- is something that only a government may do.
>national or international mandate in hand, in my opinion, ICANN should
>great caution before taking such a step. Moreover, it is not even
>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
>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
>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
>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
>Submitted with thanks to the members of Working Group A.