Domain Name Rights Coalition

Registrars and Customer Service - Three Comments - Part 2:

This is a continuation of my previous note, "Registrars and Customer Service - Three Comments - Part 1".

One of the two letters was from Tim Ruiz of GoDaddy.  The gist of this letter was that the number of registrar complaints received by ICANN really was not significant enough to suggest that there is any problem with how registrars behave.

The number of complaints cited was 10,000 during 2006.

Sounds like a lot.

Sounds like a lot more when we realize that it is a rule-of-thumb of marketing and sales that for every customer complaint there are nine more who are angry but silent.

And it sounds like a lot more when we realize that a large number of domain name consumers are professional monetizers who are probably in bed with, or at least in the bedroom with, the registrars they work with - complaints from this quarter are probably rare.

That means that we are talking about at least 100,000 upset domain users out of a pool that mounts to those who actually use domain names as long-term stable identifiers - a pool that probably amounts to perhaps 10 million at best - so we are talking about a complaint rate of at least 1% per long-term domain name client per year.  That's a pretty significant problem rate, especially when measured as the expectency of a long-term domain owner over the lifetime of his/her ownership.

And the number of complaints seems even bigger when we realize that there are a lot of issues that people have simply learned to accept without complaint.  For example, was there a complaint when GoDaddy became a tool in a dispute and yanked someone's domain name, with 52 seconds notice?

And there are a lot of people who have simply given up - either because they don't know to whom they should complain, or have complained in the past and found the system to be a bowl of futile hope, or simply don't realize that they have been scrod.

So, from the same numbers I draw the opposite conclusion - I perceive that we have a serious issue between that part of the public who use domain names for what they were originally intended to be - long term stable identifiers on the internet - and the registrar/registry system that sells (or rents) those names.

Posted by mikki at 08:28 AM | Permalink | Comments (0)

Registrars and Customer Service - Three Comments - Part 3:

This is a continuation of my previous note, "Registrars and Customer Service - Three Comments - Part 1".

One of the two letters was from David Maher of PIR, the registry handling .org.

I have great respect for David Maher - he's one of the "white hats".  But in this instance I believe he is going down the wrong path.

Perhaps the most important sentence of his letter was this:

While I recognize that the registrar function is best served by a competitive business model, the Internet has become too important to all its users to allow pure competition to set the standards for customer service.

When it comes to domain names under ICANN we have never ever had a "competitive business model".

What we have had is a highly regulated marketplace in which there is little real choice between domain name products - ICANN has dictated many of the terms of sale, ICANN has dictated the major price components (reserving a hefty chunk for registries such as PIR and for ICANN), and ICANN has severely constrained the number of vendors in the marketplace.

In other words, we are already living in the world in which there is not pure competition, indeed no real competition at all, except on a thin price margin above the core cost components that ICANN reserves for registries and for ICANN.

Why is this so?  Why are we consumers of domain names to be treated as children and not allowed the full possible smorgasbord of domain name products that vendors might create?

Let me be even more specific - By implication my proposal for a domain name product, my .ewe TLD, is a danger to the internet because it does not follow ICANN's rules.

But I deny that new, and different, ideas such as .ewe represent a danger to the stability of the internet.  Yes, such ideas pose a danger to the business stability of the current ICANN-approved incumbents, but we have never as a modern society accepted that there should be such protected marketplaces absent a clear, compelling, and clearly articulated reason for such protection.

So what I would like to hear is this:  What are the reasons that require NTIA and its secular arm, ICANN, to require that the domain name marketplace be wrapped with restrictions and limitations that effectively turn the domain name marketplace into a medieval guild?

I'm not willing to accept vague platitudes - I want to hear specific and concrete reasons.  And my measure of stability is based on the technical ability of the internet and the upper tier of the domain name system to turn DNS query packets into DNS reply packets with dispatch, accuracy, and without prejudice for or against any query source or query target.

I am sure that someone will raise the bogeyman of business failure of a registry or registrar causing hapless domain name owners to become orphans with names that no longer work.  To me that's a business issue, or a consumer protection issue.  The resolution of such issues is a governmental legislative matter, not something for a body whose role is technical coordination.  And there are easy, non intrusive answers to this - my own suggestion is that those registries and registrars that want to demonstrate a commitment to protecting their customers actually engage in data escrow programs and yearly audit themselves and post a statement attesting that they engage in adequate data preservation practices that a successor in interest could pick up the pieces and restore operations.  Consumers can learn to look elsewhere if a registry or registrar does not do these things.  This kind of self-protection on the part of consumers would be greatly enhanced if ICANN were to remove its existing rule against long-term registration contracts.

Posted by mikki at 08:27 AM | Permalink | Comments (0)

New Improved Cartel Jihad! Now More Efficient Than Ever!:

In case you were fooled lately into thinking that the RIAA and the rest of the Content Cartel were going to pursue a policy other than "Sue All the World, Sue All the Children" please permit the blog "Recording Industry vs The People", maintained by NYC lawyers Ty Rogers and Ray Beckerman, to adjust your reality.

The blog has posted a letter appearntly leaked from the RIAA. In this letter the Cartel enforcement arm attempts to cajole ISPs into maintaining subscriber ISP records for 180 days. To make its lawsuits go more smoothly, of course. In exchange for shutting the hell up and turning over data promptly the ISP's customers get a promise of a $1000 discount for payment prior to lawsuit being filed. It's not at all clear to me why any sane ISP would sign on to this deal since it means more work and more risk for them, not to mention the exposure of being counter-sued by irate customers for turning over records.

You can read a brief summary on the lawyer's blog, and extensive commentary on the various links below the entry. The gist is still the same - the RIAA wants more suits, faster suits, more settlements, and fewer embarrassing publicity gaffes. I can't exactly blame them for wanting these things, but I'd rather they realized that they haven't made any difference in the past 7+ years of suing their customers and they're not going to make a difference if they spend another 77 years suing their customers.

Posted by mikki at 11:00 AM | Permalink | Comments (0)

EFF takes Viacom to task over YouTube takedown:


Web rights advocates say YouTube contributors mistakenly accused of infringing upon Viacom copyright may be the real victims.

Posted by mikki at 09:59 AM | Permalink | Comments (0)

S'prise, S'prise:

Yesterday we discovered that our new kitchen hood - consisting of a fan with a speed
control, a light with a dimmer, and a timer - needed to be rebooted.

Rebooted!

Wow, a kitchen hood that can do, much less needs a software reboot.  That's pretty amazing.

But not so amazing as this fact: ICANN's self-emasculating ombudsman has established a blog!  Against this, a range hood that can be rebooted becomes unremarkable.

Is this blog going to be sequence of excuses?  If so, it has certainly gotten off to a good start.  Will it be a mirror of the ombudsman annual report - a glorified litany of trivialities leavened with excuses why nothing real was done to redress ICANN's institutional disregard for its own rules?

And yet ICANN's own board members - people who's fiduciary duties contains an element of responsibility to consider the affect of ICANN upon the public interest - continue to feel institutionally constrained from interacting with the public.

Board members are supposed to be the real ombudsmen.  They are supposed to be to be making inquiries into the activities of ICANN and unlike a hired ombudsman are legally empowered to do so.  But no, ICANN's board acts more like a panel of worthies who have aged into passive somnolence.

My range hood has a reset button.  Where's the reset button for ICANN?

Posted by mikki at 01:55 PM | Permalink | Comments (0)

Protection Of Personal Names In Domain Names:

David Pecker is the chairman of American Media, Inc., publisher of, among others, National Enquirer and Weekly World News. 'Mr. Ferris' registered the domain name DAVIDPECKER.COM, had a PPC company host it, where it was keyed to ads for porn, because, according to the registrant, the word PECKER was in the domain name. Mr. Pecker brought a UDRP.

Although 'Mr. Ferris' (as he is identified in the decision) did not seem (to me) that he could establish a bona fide intent to use the name in conenction with an offering of goods or services, and altohugh there seemed to be plausible evidence of bad faith, the UDRP was denied. Complainant could not establish rights in his name as a trademark:

" A number of disputes under the Policy have involved personal names, as here, and the panels’ decisions have been mixed on the issue of whether the complainants have rights in the names. See, e.g., Tom Cruise v. Network Operations Center / Alberta Hot Rods, WIPO Case No. D2006-0560 (finding common law rights in “Tom Cruise”); and The Reverend Dr. Jerry Falwell and The Liberty Alliance v. Gary Cohn, Prolife.net, and God.info, WIPO Case No. D2002-0184 (finding no rights in “Jerry Falwell”).

Indeed, the issue of rights in personal names has generated enough cases and raised enough questions that the matter has been addressed by the “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, which states: “While the UDRP does not specifically protect personal names, in situations where an unregistered personal name is being used for trade or commerce, the complainant can establish common law trademark rights in the name.” “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, paragraph 1.6, “http://arbiter.wipo.int/domains/search/overview/index.html” (visited January 15, 2007).

. . .

In this case, Complainant has provided no evidence of his rights in the Disputed Domain Name other than broad assertions that he “is known nationally and internationally by the name David Pecker and his high profile name is linked inextricably with AMI and is cited frequently by the media”, and an affidavit from AMI’s assistant general counsel that Complainant “possesses a strong common law service mark in his name by virtue of his position as being one of the leaders in the publishing industry… David Pecker’s personal fame and reputation have caused his name, as a leader in the publishing industry and as Chairman and CEO of AMI, to acquire a secondary meaning in the industry. Complainant’s name is used to promote AMI and the public understands his name as referring to AMI”. While these statements may well be true, it is nevertheless incumbent on a complainant, except in the most obvious cases, to provide evidence in support of a claim to rights in a personal name for the purposes of the Policy. . . . It is also unclear to the Panel on the evidence provided whether, as required by the Policy in such cases, Mr. Pecker “has ever used his personal name for the purpose of advertising or promoting his business or for the sale of any goods or services”. Joacim Bruus-Jensen v. John Adamsen, WIPO Case No. D2004-0458.

. . .

In light of the above, the Panel is not convinced, based on the limited record before it, that Complainant has established rights in the name “David Pecker” for the purpose of this proceeding. Therefore, the Panel finds that Complainant has not succeeded in proving the first element of the Policy.

[HOWEVER]

Complainant’s lack of success in this proceeding in proving its rights in the name “David Pecker” does not necessarily mean that Complainant has no remedy. “He may have claims under the Anticybersquatting Consumer Protection Act (‘ACPA’), which expressly provides for protection of personal names, or perhaps his actions lie in tort. Complainant is free to pursue his claims in U.S. courts.” The Reverend Dr. Jerry Falwell and The Liberty Alliance v. Gary Cohn, Prolife.net, and God.info, WIPO Case No. D2002-0184.

Note: Complainant has indicated he is considering an ACPA proceeding.

Comment: Entertainers usually fare better in UDRPs than well-known executives, as it tends to be easer for them to show, in the absence of a registration, that their names function as common law trademarks for the entertainment services they provide. That should be some comfort for PETER O'TOOLE.

Posted by mikki at 10:55 AM | Permalink | Comments (0)

Prof refuses to quit using Tor:


Cory Doctorow:

The Chronicle of Higher Education has an amazing story by a brave prof, Paul Cesarini, who got leaned on by his university's IT department to stop using Tor, the anonymizing network tool. They even wanted him to stop teaching it. Cesarini stuck to his guns -- and won.

My visitors next produced page after page of logs detailing my apparent use of Tor. While I couldn't dispute most of the details in the logs, they seemed inaccurate. For example, the technician said I had been using Tor earlier that morning. In fact, I had been at Wal-Mart that morning looking for a good deal on an HDTV; I had reached my office only about five minutes earlier.

More important, the logs did not prove any wrongdoing on my part. All they demonstrated was that I, like thousands of others around the world, had installed and infrequently used Tor. In my case, of course, there was no wrongdoing.

Nonetheless, my visitors made two requests: that I stop using Tor, and that I avoid covering it in class.

Having been on the administrative end of academic technology, I appreciate the difficulties facing the information-technology staff. No one pats you on the back if nothing goes wrong, but if something does — if a virus or worm sweeps through the campus's network infrastructure, or someone hijacks some computers to churn out spam — you are off everyone's Christmas-card list. The last thing my former colleagues needed was some smarmy faculty member spouting off about academic freedom and threatening to demonstrate Tor to 100-plus students each semester.

Their job is to protect the network that allows me to do my job: to teach classes that are mostly or entirely online, and to conduct research. If they weren't here as the first or even only line of defense against the unscrupulous elements of our technological society, my university would cease to function. It's as simple as that.

Link

(via /.)

Posted by mikki at 10:13 AM | Permalink | Comments (0)