Domain Name Rights Coalition

Supreme Court Tackles Dangerous Patent Ruling:

EFF Asks Justices to Consider Critical Free-Speech Implications

San Francisco - The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the United States Supreme Court Thursday, asking justices to overturn a court ruling in a patent case with dangerous implications for free speech and consumers' rights. The Public Patent Foundation, the American Library Association, the American Association of Law Libraries, and the Special Library Association joined EFF on the brief.

At issue is a case involving online auctioneer eBay and a company called MercExchange. Last year, the Federal Circuit Court of Appeals ruled that eBay violated MercExchange's online auction patents and that eBay could be permanently enjoined, or prohibited, from using the patented technology. But as part of the ruling, the court came to a perilous conclusion, holding that patentees who prove their case have a right to permanent injunctions under all but "exceptional circumstances," like a major public health crisis. This radical rule created an "automatic injunction" standard that ignored the traditional balancing and discretion used by judges to consider how such a decision might affect other public interests--including free speech online.

"As more and more people use software and Internet technology to express themselves online, the battle over software patents has grave implications for online speech," said EFF Staff Attorney Corynne McSherry. "Courts must work harder than ever to ensure that technologies like blogs, email, online video, and instant messaging remain free and available to the public."

The lower court's ruling stems in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress.

"Part of the court's duty in patent cases is to make sure that the system helps the public's right to free speech instead of hurting it," said EFF Staff Attorney Jason Schultz. "If this ruling is allowed to stand, courts won't be able to do what's right."

For the full brief:
http://www.eff.org/legal/cases/ebay_v_mercexchange/eff_amicus_brief.pdf

For more on patents and how bad law can hurt the public:
http://www.eff.org/patent

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Posted by mikki at 11:02 AM | Permalink | Comments (0)

No IANA Reports on .CX, .GS, or .TK:


Over the last six months, ICANN has approved the redelegation of .CX (Christmas Islands), .GS (South Georgia and South Sandwich Islands), .TK (Tokelau). The IANA reports on the redelegations, however, are nowhere to be found, which leads one to wonder on what information is ICANN redelegating ccTLDs? The last time I blogged about this, I was told privately by ICANN Staff that the problem with the IANA reports, whatever it was, had been corrected. Hmmmm.

Posted by mikki at 10:59 AM | Permalink | Comments (0)

WIPO Responds to Significant Cybersquatting Activity In 2005:


In a report released today, the World Intellectual Property Organization (WIPO) has announced a 20% increase in the number of cybersquatting (abusive registration of trademarks as domain names) cases filed in 2005 as compared to 2004. The report further indicates that "in 2005, a total of 1,456 cybersquatting cases were filed with WIPO's Arbitration and Mediation Center. This increase represents the highest number of cybersquatting cases handled by the WIPO Center since 2001."

Posted by mikki at 10:38 PM | Permalink | Comments (0)

ICANN Is Never Wrong:


If you've been following the practical problems of The Practical Nomad in getting an Independent Review out of ICANN, you'll want to read the latest salvo from ICANN's General Counsel. Brief background: At the recent ICANN Public Forum in Vancouver, ICANN's Board Chair Vint Cerf pledged to a patient yet dogged Edward Hasbrouck that "GENERAL COUNSEL IS PREPARED TO PROVIDE YOU WITH THE DETAILS OF HOW TO GO ABOUT THIS PROCEDURE [AN INDEPENDENT REVIEW]."

At the ICANN Board meeting the following day,

ICANN's Counsel read a letter to Mr. Hasbrouck stating "PLEASE PROVIDE

US WITH YOUR FORMAL IRP REQUEST IN WRITING, AND WE WILL FORWARD YOUR

REQUEST TO THE INTERNATIONAL CENTER FOR DISPUTE RESOLUTION, WHICH ICANN

HAS DESIGNATED TO PROVIDE INDEPENDENT REVIEW SERVICES IN ACCORDANCE

WITH THE BYLAWS." (emphasis added). Mr. Hasbrouck immediately did so,

agreeing (under protest) to ICANN's financial preconditions and

attaching his previous Independent Review request from months earlier.

ICANN's official response is truly mind-boggling.

If you follow ICANN closely, you really ought to read it. It has

enormous impact on the entire ICANN community. As background, remember

that the IRP provided by the ICANN Bylaws provides that "Any person materially affected by a decision

or action by the Board that he or she asserts is inconsistent with the

Articles of Incorporation or Bylaws may submit a request for independent

review of that decision or action."

In its response to Mr. Hasbrouck, ICANN takes the unreasonably narrow

view that only Board "resolutions" are reviewable by Independent

Review. It further claims that ICANN's operating "procedures" are not

reviewable, even when they were necessary precursors to ICANN Board

actions or followed directly from such actions. Finally, and most

troublesome of all, ICANN claims that Staff

actions that are inconsistent with, or even in direct violation of,

ICANN's Bylaws are never reviewable, even when those Staff actions

informed or followed from Board decision-making.

To top off

ICANN's insult to what remains of its own integrity, ICANN declines to

forward Mr. Hasbrouck's request to an Independent Review panel, despite

the public promises it made to him in Vancouver and Mr. Hasbrouck's

agreement to ICANN's preconditions. Instead, ICANN insists that Mr.

Hasbrouck redraft his request and resubmit it in a legalistic format

that is specified nowhere on ICANN's website.

We all need to

stand on the side of Edward Hasbrouck on this issue. Whether he's right

or wrong on his ultimate claim matters less than the precedent ICANN

will set by construing its Independent Review provisions as reviewable

of almost nothing.

Posted by mikki at 12:19 PM | Permalink | Comments (0)

First Thoughts on ICANN's "Whois" Report:

I just glanced through ICANN's Whois Report - or more properly it's Preliminary
task force report on the purpose of Whois and of the Whois contacts.

Much seems centered around two different points of view of the purpose of
whois data.

But I notice a very glaring omission in both points of view:  Neither
defines who is the intended beneficiary of this violation of privacy.

Both formulations are ambiguous with regards to the intended beneficiary of
the information.  Is the beneficiary intended to be the owner of the domain
in the sense that publication allows the owner to learn more quickly that
something might be awry?  Or is the intended beneficiary meant to be the
person who feels somehow wronged or harmed by the actions of the domain name
owner?

How can one grant any validity to this report if it can not define the
intended beneficiary of this highly intrusive, privacy-busting, heavy-handed,
one-sided regulation of internet activity?

This document makes many claims that the destruction of privacy would create
some benefits to certain groups.  But privacy is a balancing of equities
and this document merely piles up anecdotal benefits without engaging in a
principled weighing of the competing equities.

Nor does the document address any measures to remediate the intrusion -
measures such as requiring those who wish to view whois to state, in writing on
a permanent record, the grounds and facts that create a need to view the
information, such as requiring that those who view whois to identify themselves
into a permanent record and authenticate that identity, such as publishing
statistics about how many times each viewer has examined whois, etc etc.

And missing from the voices in the document are the victims - the people
whose personal privacy is penetrated and whose families and lives could be, and
have been, harmed and endangered by ICANN's policies.  ICANN long ago
excluded the voice of the public.  But without that voice this document
must be considered vacuous, the product of systemic bias, and as nothing more
than an instance of Benjamin Franklin's two wolves and a lamb voting on what to
have for lunch.

The document makes claims based on some sort of notion of inertia deriving
from "historical uses" of whois.  I am one of those people who
have been part of the internet since the early 1970's.  My name is to be
found in many of the early versions of whois - such as the ARPAnet directories
from that era.  And I can state from my own experience that the original
purpose of such publications was a quasi-private roster of friends in a small
club and not a directory that was intended to be open to public access.  In
other words, the so-called history mentioned in the report is nothing more than
hearsay, gossip, and fantasy that diverges from the reality experienced by those
of us who were actually there.

On a minor note - the formatting of the document, in a word, sucketh. 
The business, registrar, ISP, and intellectual property constituency statements
are all headed by text in grand 20+pt font while the non-commercials are hidden
under a 12 point header that is lost in the numbering system.

As a whole, the document is worthless.  Only the Non-Commercial
constituency approaches the questions based on a principled analysis; the other
groups are simply making self-aggrandizing assertions.

I wonder - how many companies of the business constituency, lawyers of the
intellectual property constituency, and members of the other constituencies
would be willing to put their personal contact information and their company and
law-firm org-charts, and phone and address directories, up for anonymous public
browsing 24x7?  My guess is that the number would closely approximate
zero.  Yet these same people, who most likely stamp every one of their
company directories with non-disclosure labels, are the most willing to condemn
internet users to a hell that they themselves are not willing to endure.

Posted by mikki at 12:16 PM | Permalink | Comments (0)