October 21, 2005

WIPO Panel Splits on Descriptiveness of bocaresorts.com

WIPO Panel Splits on Descriptiveness of bocaresorts.com: "An arbitration panel of the World Intellectual Property Organization has decided 2-1 in favor of Complainant Boca Raton Resort & Club in an action under the Uniform Domain Name Dispute Resolution Policy over the domain name bocaresorts.com. ...The Presiding Panelist, Dennis Foster, disagreed with the majority's conclusion, and issued a dissent that addressed the issue of bad faith. Foster asserted that the Respondent was 'entitled to believe that the phrase 'Boca Resorts' is geographically descriptive and means resorts in the city of Boca Raton, Florida..."

(Via CircleID: All Posts.)

Posted by mikki at 02:19 PM | Comments (0)

Breaking the Internet HOWTO

Breaking the Internet HOWTO: "A number of people, notably Viviane Reding, the European Commissioner for Information Society and Media, have been asking about how to Break The Internet. Since Mme Reding seems to have absolutely no prior experience in the Information Technology, Computing or Telecommunications industries, I have prepared this brief HOWTO. '1. Declare the creation of a new Root Zone. This is the easy bit - all you have to do is spout great volumes of hot air at a conference in Geneva, and then storm out in a huff when other people refuse to take you seriously. Then you get the PFY who services your photocopier to declare the creation of a new European Root Zone! Hooray!'"

(Via CircleID: All Posts.)

Posted by mikki at 02:05 PM | Comments (0)

September 25, 2005

The Non-Parity of the UDRP

The Non-Parity of the UDRP: "The UDRP is obviously not working. Two websites, fundamentally the same (criticism at trademark.tld), two opposite decisions, both within weeks of each other! A Complainant (Biocryst Pharmaceuticals Inc) initiated a complaint to WIPO about one of my criticism websites (biocrystpharmaceuticals.com). The Panel found in my favour. Another Complainant (Eastman Chemical Inc) meanwhile made a complaint to NAF regarding another of my criticism websites (eastman-chemical.com). The Panel found..."

(Via CircleID.)

Posted by mikki at 02:20 PM

June 14, 2005

Domain Name Dispute Puts Dot-Ca in the Spotlight

Domain Name Dispute Puts Dot-Ca in the Spotlight: "My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) focuses on the recent Canadian parliamentary discussion on domain name disputes. As discussed about ten days ago, the impetus for governmental interest in domain name disputes and Internet governance is the registration of several..."

(Via CircleID.)

Posted by mikki at 07:06 AM

June 06, 2005

New domains must protect trade marks, says WIPO | The Register

But why are there NO provisions to protect small businesses and/or speech interests in new gTLDs? Why indeed.

New domains must protect trade marks, says WIPO | The Register: "A uniform intellectual property protection mechanism should be established to protect trade marks whenever new generic top-level domains (gTLDs) are introduced, according to the World Intellectual Property Organisation (WIPO). The recommendation has been made in a report submitted to ICANN, the body that manages the internet’s domain name system, which asked WIPO for expert advice on IP issues involved in the introduction of gTLDs last year."

(Via The Register.)

Posted by mikki at 03:59 PM | Comments (0)

June 01, 2005

USATODAY.com - Court hears Falwell Web domain arguments

Yet another important Domain Name as Speech case is playing itself out in Richmond, VA. We are, of course, hoping that the 4th US Circuit Court of Appeals overturns the previous ruling. Again, this is a case of criticism that should be allowed to stand as such, and its non commercial status should be ruled as completely outside of trademark law.

Trademark law was carved out of the First Amendment to protect the CONSUMER (not the maker of a product or holder of a trademark) from confusion as to the source of a product or service. Few consumers could possibly be stupid enough to figure that a criticism site was written by the target of the criticism.

USATODAY.com - Court hears Falwell Web domain arguments: " RICHMOND, Va. — A Web site critical of the Rev. Jerry Falwell's views on gays contains constitutionally protected, noncommercial speech and should be allowed to keep its name — a common misspelling for the conservative evangelist, a lawyer for the site owner argued Thursday. Christopher Lamparello of New York City, who operates fallwell.com, took his case to the 4th U.S. Circuit Court of Appeals seeking to reverse a federal judge's ruling that he violated federal trademark law. A lawyer for Falwell maintained Lamparello's use of a variation of the preacher's name bordered on theft. "It's been wrong to steal since Moses came down from the mountain," attorney John H. Midlen Jr. said.

(Via USA Today.)

Posted by mikki at 10:21 AM | Comments (0)

May 31, 2005

An Infrastrure TLD - Avoiding the Side Effects of Today's .net

An Infrastrure TLD - Avoiding the Side Effects of Today's .net: "

I've mentioned before that there is something special about the .net top level domain - in particular .net is the place where the legacy root DNS servers and most of the TLD servers are to be found. Thus, if .net were to wobble there is more than a strong chance that the DNS root and other TLDs would also begin to wobble. This kind of cross-dependency is something that A) is a risk to overall internet stability and B) is something that ICANN seems utterly unable to perceive.

So I ask this simple question: Why can't the domain names of the legacy root servers and TLD servers be moved to a new global infrastructure top level domain? Such a new TLD would be intrinsically much more stable than .net. In fact because the size would be small, a new infrastructure-only TLD could be readily cached and replicated, thus providing much more resiliency against attack and could be recovered much more quickly than .net should an attack be successful.

This new TLD should be used only for machines that provide services in support of DNS on a global basis (with the proviso that any server that delivers a TLD zone for any TLD, whether that TLD is ICANN approved or not, should be considered 'global infrastructure'.)

For the moment let's call this new TLD 'q8m', which is a short phrase without any annoying semantics (I hope).

Thus this infrastructure TLD would contain delegations for things like 'root-servers.q8m' and 'tld-servers.q8m' to replace the existing 'root-servers.net' and 'tld-servers.net'.

Anyone who wants to establish a group of infrastructure servers would register for a delegation in this this infrastructure TLD. The registration agreement would require that the registrant police the use of the delegation so that the resource records found via that delegation are all present for the exclusive purpose of providing infrastructure services.

In order to discourage spurious thrashing of the contents of this infrastructure TLD there should be a steeply ramped fee schedule for updates. The first 4 per year should be inexpensive ($25) but after that the fee should quickly ramp up to at least $100 per update.

Were this kind of infrastructure TLD to be established, much of the special nature of .net would be eliminated; a failure of .net would not then have the kind of destructive repercussions onto other parts of the internet that is now the case.

"

(Via CaveBear Blog.)

Posted by mikki at 10:46 AM | Comments (0)

April 30, 2005

Wal-Mart on the Domain Name War Path

Wal-Mart on the Domain Name War Path: "Wal-Mart seems to have been particularly vigilant lately about protecting itself from third parties setting up websites critiquing Wal-Mart and its practices. ...Wal-Mart recently scored a victory in an arbitration proceeding under the Uniform Domain Name Dispute Resolution Policy ('UDRP') before the World Intellectual Property Organization ('WIPO') against Jeff Milchen, a self-proclaimed critic of Wal-Mart from Bozeman, Montana who registered the domain..."

(Via CircleID.)

Posted by mikki at 11:29 AM | Comments (0)

April 21, 2005

Ninth Circuit Disagrees With Fourth Circuit's PETA.org decision

ACPA Applies to Noncommercial Use of Domain Name

....Finally, Bosley argued that the conduct was actionable because Kremer used the domain name in connection with Bosley's goods and services. The Ninth Circuit disagreed with this rationale, found in the Fourth Circuit's decision People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir. 2001), because it would encompass a mark merely used as the object of criticism. In Kremer's case, no consumer would mistakenly try to buy goods or services from Kremer based on the use of Bosley's mark and Bosley was doing nothing to trade on Bosley's goodwill.

more here

Posted by mikki at 07:52 PM | Comments (0)

April 20, 2005

Nissan's Appeal Over Website Rejected

Nissan's Appeal Over Website Rejected: "   A refreshing ruling in the right to hold domain names whose content will not confuse the consumer as to the source of a product or service. Also a win against those who try to use the anti cybersquatting consumer protection act as a club wielded by bullies to take names that were registered first by others for their non infringing uses. The U.S. Supreme Court on Monday turned away an appeal by Japanese automaker Nissan Motor Co. in its fight to block a North Carolina man from using his Nissan.net and Nissan.com websites to sell ads and make disparaging comments. Nissan Motor, which has trademarked its name, says Uzi Nissan is diverting consumers looking for the automaker's website. The justices made no comment in rejecting the appeal, included on a list of orders released in Washington. The case now returns to U.S. District Court in Los Angeles, where the two sides are still battling over additional issues. Nissan North America, the automaker's U.S. unit, is headquartered in Gardena. Uzi Nissan, who has used his last name in connection with various businesses since the 1980s, registered the Internet domain names in 1994 and 1996 to advertise a computer sales and service business, Nissan Computer Corp. More here

Posted by mikki at 12:02 AM | Comments (0)

March 28, 2005

BBC NEWS | Technology | Legal row over iTunes domain name

BBC NEWS | Technology | Legal row over iTunes domain name: "An internet entrepreneur is taking legal action against computer giant Apple over the iTunes domain name.

Benjamin Cohen, 22, registered itunes.co.uk in 2000, but earlier this month the UK domain name registry, Nominet, handed the name over to Apple.

Mr Cohen, of Hackney, east London, has applied to the High Court for a judicial review, saying Nominet is biased against small businesses.

But Nominet say legal experts found Mr Cohen was abusing his registration."

more here

Posted by mikki at 11:16 AM

March 08, 2005

What Happens When You Have a WIPO Meeting... (Donna Wentworth)

So why are people surprised by this? WIPO is simply following the ICANN model. If a group that claims it is "open and transparent" can be allowed to have meetings in places where they KNOW that public interest people can't afford to go, and although a few people make noise about it, the organization it supposedly reports to (NTIA) does nothing, why can't WIPO follow suit? After all, WIPO has never claimed to be open and transparent, and has ALWAYS been up front about its mandate to protect intellectual property interests.

...and nobody is allowed to show up?

Or, in another clever variation of the theme, you're told to meet in separate groups somewhere far away, where it's too expensive for those who support your position to join you?

Yesterday I provided the fleetest of updates on the first scenario. Cory did a better job of it over at BoingBoing, capturing in a few typically vivid sentences where we are in the struggle to introduce public-interest considerations to WIPO decsionmaking:


When I first got involved [in WIPO], I wasn't sure that we could make a different against this monolithic, enormous institution, but these days, I'm less worried: WIPO has been fighting the participation of public interest groups with the kinds of dirty tricks that indicate that they're running scared, which means that we're doing something right.

Now David Tannenbaum has written an excellent LawMeme post providing details on the second. In short, WIPO is engaging in a "divide and conquer" strategy with regard to the "Substantive Patent Law Treaty," and a group of Development Agenda supporters is formally protesting:

Regional consultations are generally held in far-flung corners of the world, unreachable by civil society NGOs [non-government organizations] on a low budget and less likely to covered by the press. There are generally no formal requirements to invite any single country, and some countries have argued that the Casablanca meeting excluded countries that expressed vocal opposition to the wealthy nations' proposals.

Shades of the struggle over the EU software patents directive? But of course. It's an old bag of tricks, but if they keep working, no one's going to stop using them.

As I've written before, it's very important that we shine as bright a light as possible on what's happening here.

It's tough to write about WIPO; you spend half your time unraveling acronyms, the other sending off flares to convey the urgency of the situation. But your voice here is very important. Most "big media" outlets aren't covering this story, and that's a huge advantage for the powers-that-be. If you're reading this post, please take a few minutes to write about how important it is that WIPO abandons these tricks and begins the real discussion about pursuing IP law and policy that serves the world majority rather than only a tiny minority of powerful entertainment companies.

[Copyfight]

Posted by mikki at 01:35 PM | Comments (0)

Domain Owners Lose Privacy

As facts unfold, and the NTIA's decision to take away our privacy comes to light, it is interesting to see the NTIA struggling to explain its decision. Keep in mind that an "as yet to be identified" bureaucrat made this decision to take away your privacy, did it without notice, and without holding hearings. Those affected were not given an opportunity to explain how the loss of privacy would negatively affect them. Quite simply, this is NOT how our government is supposed to work.... [CircleID]

Posted by mikki at 11:15 AM | Comments (0)

February 11, 2005

NTIA Nixes Privacy Protection in Whois (Circle ID)

Once again the US Government has sided with the Intellectual Property cartel and ignored practical privacy intereests.

Many registrars have gotten complacent about reforming the Whois-Privacy relationship. After all, they can sell additional privacy protection to their subscribers for an extra $5-10. Seems like a perfect "market oriented" interim solution, as the so-called "bottom up" policy development process of ICANN figures out how to provide tiered access. Not so fast. [CircleID]

Posted by mikki at 06:00 PM | Comments (0)

December 01, 2004

Stop the (IP Mini) Bus - Wendy Seltzer

While much has been stripped out of the end-of-year copyright bill that passed the Senate over the weekend S. 3021 (pdf), much that's harmful remains. Particularly egregious is a provision that hasn't gotten much attention, the "Fraudulent Online Identity Sanctions Act." Ostensibly aimed at infringers who hide behind false domain name registrations, the provision seriously penalizes those who merely want to protect their privacy.

Because there's no way to opt-out of publication of private address information in the WHOIS database when you register a domain name, your choices are to expose your address and phone number; use a possibly unreliable intermediary; or fake it. Unfortunately, if you choose the last option and FOISA passes, you'll now be presumed to be a willful infringer of copyright or trademark. A critic who makes liberal use of a company trademark, or a commentator who quotes a chunk from another's text, both now face a much steeper hurdle in their fair use defenses.

Also in the bill are criminal penalties for making available a single "pre-release" work and for recording a movie while it's playing in a theater. I'm not arguing that this infringement is right, but it's not the kind of thing we should be sending kids to jail for, either.

The bill adds an entirely new Title VII, "Professional Boxing Safety." Since the whole thing still has to pass the House, let's hope someone there finds this objectionable enough to KO the bill.

[Wendy: The Blog]

Posted by mikki at 10:45 AM | Comments (0)

November 10, 2004

Domain Hijacking Got Easier or Did It?

Slashdot recently ran a story about the upcoming changes to the ICANN rules governing domain transfers between registrars. A blog entry at Netcraft referenced by the story stated that: "...domain transfer requests will be automatically approved in five days unless they are explicitly denied by the account owner. This is a change from current procedure, in which a domain's ownership and nameservers remain unchanged if there is no response to a transfer request. This could mean trouble... [CircleID]

Posted by mikki at 09:26 PM | Comments (0)

November 09, 2004

Domain Name Hijacking Affects Local Illinois Campaign in Will County

We've previously noted here the challenge of dealing with domain name disputes based on personal names, particularly in the political arena. Now that the campaigns are over and all are taking a deep breath, we can reflect back on one of the domain name disputes arising in the political campaign this year for the office of State's Attorney in Will County Illinois. [CircleID]

Posted by mikki at 09:22 PM | Comments (0)

February 10, 2004

Using Whois to Enforce Law? - CircleID

A good article attempting to explain the fallacy of using Whois in a manner that it was never intended for.

Before starting I'd like to remind you that there are two distinct Whois systems -- the one for IP address delegations and one for DNS registrations. I believe that the former is a useful system in which there are clear utility values that outweigh the privacy costs, and in which the person whose privacy is exposed has made a knowing choice. I do not believe that these arguments apply to the latter, the DNS, form of Whois. [CircleID]

Posted by mikki at 12:25 PM

February 05, 2004

Privacy Alert: Watch Out For FOISA

What fun. If it's not broke, break it.

This morning, at 10 am in 2141 Rayburn, the Subcommittee on Courts, the Internet, and Intellectual Property is holding a hearing on "Internet Domain Name Fraud -- New Criminal and Civil Enforcement Tools." At that hearing, the Subcommittee will be considering a new Whois bill creating new penalties for people who provide false data when registering a domain name. We need to raise our collective eyebrows at this bill (which was suddenly dropped the evening before this hearing).... [CircleID]

Posted by mikki at 09:21 AM

January 15, 2004

Tolkien estate wins net ruling

JRR Tolkien's estate wins a cyber-squatting case to stop the Oxford author's name being used as a web address. [BBC News | TECHNOLOGY]

Posted by mikki at 09:48 AM

January 13, 2004

Future of Internet Navigation and DNS: The NAS Study

From CircleID

The National Academy of Sciences (NAS) has been studying the issue of Internet navigation and the DNS. The study was undertaken at the request of Congress to "provide analysis and advice for consideration by agencies of the U.S. Government, interested international institutions, and other stakeholders." In addition to examining technological issues, the study is also considering "relevant legal, economic, political, and social issues...because technologies related to the DNS... [CircleID]

Posted by mikki at 10:03 AM

December 05, 2003

Why WIPO Does Not Like the UDRP

The World Intellectual Property Organization (WIPO) -- the same organization whose head recently equated intellectual property infringement with terrorism -- has been pressing ICANN to add domain name monopolies on the names of countries, and the names and acronyms of inter-governmental organizations, into the Uniform Domain Name Dispute-Resolution Policy (UDRP). Despite the fact that no-one but WIPO seems to want these new exclusions, a working group has nonetheless been convened to... [CircleID]

Posted by mikki at 03:51 PM

November 30, 2003

.Name Registry Hacked

On Saturday, November 29, 2003 a post on the GNSO mailing list indicated that the .name registry website had been hacked. As reported by George Kirikos, "The .name registry's main website www.nic.name has been hacked, as of Saturday evening in North America. According to Netcraft, they're running Linux. They must not have kept up to date with all security updates, or someone cracked a password. Hopefully offsite backups were made, to ensure data integrity." Although, due to... [CircleID]

Posted by mikki at 03:37 PM | Comments (0)

November 19, 2003

CyberSquatting? Or CyberProtesting? You Decide

An article in the Miami Herald brings up an interesting question. When a person is intentionally diverting web traffic through use of domain names in order to protest a practice he finds wrong, where are the limits?

While it is clear that speech rights should always be paramount on the Internet, we have law that makes it a felony to divert unsuspecting children to pornographic websites. Would it work the same way if an unsuspecting person (who might be a child) who is attempting to send email to Carrie-Anne Moss, finds herself face to face with graphic photos of aborted fetuses?

What do the DNRC readers think? Please email us at admin at netpolicy dot com and let us know.

Posted by mikki at 10:50 AM

October 30, 2003

Lobbying for Whois Privacy

Unfortunately, the strength of the trademark lobby, who feels that using this technical tool as an enforcement tool makes privacy issues unlikely to be addressed. We have long been told that speech rights, and rights to privacy (constitutional rights) must take a back seat to intellectual property "rights." How having a list of all domain name holders, including home addresses and telephone numbers, is an "intellectual property right" is beyond me, but there you have it

Today a letter was submitted to the President of ICANN, Paul Twomey, at the ICANN Carthage meeting, "asking him to ensure that strong privacy safeguards, based on internationally accepted standards, are established for the WHOIS database." Latest reports indicated that the draft letter had been signed by about 50 nonprofit groups and represented 21 countries on six continents. "Signers of the letter included the American Library Association, the U.S. Association for... [CircleID]

Posted by mikki at 11:28 AM | Comments (0)

October 07, 2003

Sitefinder vs the "Rise of the Stupid Network"

So why is Sitefinder so bad anyway? DNRC Board Member Karl Auerbach answers that question in the following article

I hope everyone has read David Isen's paper, the Rise of the Stupid Network.

That paper argues that telephone company networks became obsolete and inefficient dinosaurs, hostile to new innovation, because they put too much "intelligence" into the middle of the network.

The success of the internet is based in large part on the end-to-end principle, a principle that promotes designes in which the net is a mere conveyor of packets and that services are pushed outside of the net and into the end points.

It seems to me that Verisign's Sitefinder is an example of exactly the kind of end-to-end violation that gave rise to the inefficient and difficult-to-innovate telephone networks that David Isen complains of in his article. Verisign's Sitefinder puts a "service" (Verisign's term, not mine) into the middle of the net, thus creating an impediment to others who wish to innovate at the proper place - at the edges.

[CaveBear Blog]

Posted by mikki at 10:01 PM

Status After 'Hurricane SiteFinder': Is It Over?

After roughly 19 days of its introduction, VeriSign's Site Finder service was finally shutdown on October 4, 2003 following a "Formal Deadline" issued by ICANN (previously reported here). With the plug pulled, the Internet appears to be returning to its regular status ending a historic event that can be... [CircleID]

Posted by mikki at 08:14 AM | Comments (0)

October 04, 2003

Losing SiteFinder

A well done article by Wendy Seltzer

ICANN demanded, at last, that the SiteFinder disservice be suspended, and VeriSign grudgingly complied. As EFF's Seth Schoen notes, VeriSign complains of not getting a hearing when they gave none to the Internet community before launching wildcards. Likewise, they fuss about notice to the community only after giving none to that same community impacted when wildcard resolution was launched.

SiteFinder should not be suspended because breaks hundreds of specific applications; it should be stopped because it breaks with the end-to-end architecture of the Internet to give one company monopolistic control of a resource in the center. It's not a contest between SiteFinder's search page and MSN's, but between giving VeriSign sole, centralized control of the error-handling for incorrect URLs and distributing that choice among users and applications at the edge of the network. The contest is rather SiteFinder versus (MSN or simple language-appropriate error message or WAP-provider's response or SiteFinder or ...), with that choice repeated across the variety of services that use DNS. Keeping SiteFinder out of the center leaves the greatest flexibility in the netowrk for those who want to add new protocols, services, and features on the ends.

ICANN has called for "further evaluation and study" of the impact of SiteFinder. The proper evaluation is for VeriSign to determine whether it will reimplement its advertiser-supported search as an option at the edge of the network or not at all.

[Wendy: The Blog]

Posted by mikki at 02:16 PM | Comments (0)

October 03, 2003

VeriSign calls halt to .com detours

The registrar shuts down its controversial SiteFinder service, which redirected mistyped and misspelled URL requests to its own site, after ICANN orders a probe. [CNET News.com]

Posted by mikki at 06:41 PM | Comments (0)

September 29, 2003

3rd Lawsuit Against VeriSign; Seeks Class Action Status

A third lawsuit has been filed late Friday in a federal district court in California against VeriSign, Inc. over its controversial DNS wildcard redirection service known as SiteFinder. It was filed by the longtime Internet litigator Ira Rothken. In addition, while two other lawsuits have been filed by Go Daddy Software, Inc. and Popular Enterprises, LLC. in Arizona and Florida, this is the first lawsuit to seek class-action status. Here is an excerpt from the "Introduction" section... [CircleID]

Posted by mikki at 08:36 PM | Comments (0)

Tangible Property: First Domain Lawsuit Filed After Federal Ruling

Optima Technology Corporation has filed a lawsuit against Network Solutions alleging that the registrar gave away its domain name without its permission causing damage to its business. The suit alleges that Network Solutions transferred ownership of its domain name "optimatech.com" to a former Optima employee Michael DeCorte, which has allowed him to redirect Optima's revenue to his possession. Optima claims that DeCorte along with another former employee Raymond Martin, used a... [CircleID]

Posted by mikki at 08:35 PM | Comments (0)

September 28, 2003

Suit filed over VeriSign domain redirect

The company is facing a class-action lawsuit over its controversial "SiteFinder" search page. Critics say the redirect service interferes with other Net applications. [CNET News.com]

Posted by mikki at 05:02 PM | Comments (0)

SiteFinder II?

From Karl Auerbach

Versign's SiteFinder appears to be based on the idea that anything on the internet that is not explicitly prohibited is thereby permissible.

For the moment let's put aside Verisign's monopoly position and the special responsibilities and limitations on behavior that derive from that position. And let's also put aside any patents that may be lurking out there that might cover SiteFinder.

If we assume, for the sake of discussion, that Versign's has correctly asserted that there are few bounds on what it can do on the internet, then where could Verisign go with something that I'll call SiteFinder II?

It would be quite easy for Versign to modify its existing SiteFinder service so that instead of returning the true and unmodified URL's that lead directly to the web sites that a user selects, SiteFinder II could return URL's that lead to Verisign operated proxy servers that themselves obtain the desired materials and then present them to the user.

This is arguably similar to explicit proxying through tools such as Squid or implicit proxying through any number of so-called "transparent" web caches. However it would be of a much greater scope - once a user made a typo in name, all subsequent web access could be mediated this still hypothetical SiteFinder II.

With that mechanism, Verisign could then do even more intensive data mining of user's web activities than it does in SiteFinder I with its simple web-bug and activity logs. SiteFinder II could read every word presented to millions of unsuspecting users and view every picture seen by those users. The revenue that SiteFinder II could produce could dwarf the already significant potential revenues of SiteFinder I. And such a system would deserve to be named BigBrother rather than SiteFinder.

The technology for this hypothetical SiteFinder II is easy to create, or buy, using already existing commercial off-the-shelf products. If Verisign is right in its assertion that it has the free right to deploy SiteFinder I, there is really nothing to prevent it from going further with even more invasive "products" such as the hypothetical SiteFinder II that I have described.

[CaveBear Blog]

Posted by mikki at 04:50 PM | Comments (0)

September 24, 2003

Will Network Solutions/Verisign Get Away With It Again?

DNRC Board Member Karl Auerbach gives his views on the Verisign DNS hijacking - ed.

As pretty much everyone now knows, Verisign recently used its monopoly registry position over .com and .net to impose a revenue-producing mechanism, which they call "SiteFinder", onto all users of the internet who are human and thus who make mistakes.

I think that it has now been pretty well established that Verisign's "SiteFinder"
has damaged the technical stability of the Internet, that it represents a major
abuse of Verisign's monopoly position, and that it amounts to a mass harvesting
of web user's browsing habits.

ICANN has requested that Verisign voluntarily roll-back "SiteFinder".
Verisign has, so far, refused to do so.

I believe that what ICANN is requesting is entirely appropriate and that a
due respect for the stability of the internet should compel Verisign to comply
with that request. However, there are signs that greed will prevail over
reason and that Verisign will withdraw "SiteFinder" only in the face
of an unambiguous, unequivocal, and incontrovertible order to do so. This
may mean that either ICANN or the US Department of Commerce may have to pull out the legal guns.

And if they do, I hope that ICANN or the DoC wins.

However, prudence obligates us to examine whether ICANN or the US Department of Commerce have the strength to win.

It is not at all clear to me that ICANN has the power to compel Verisign to
rescind Verisign's "SiteFinder". Nor is it clear to me that the
US Department of Commerce, even if it might have the authority, has the will.

The relationship between ICANN, the DoC, and Verisign is one governed by
agreements that have the look and smell of contracts. This means that many
of the rights and duties of these players are governed by contract
principles. Clearly the relationship between the DoC and Verisign is a
child of US Federal law. However, since both Verisign and ICANN are
incorporated in the State of California, many of those principles governing the
contracts between Verisign and ICANN will be found in the laws of
California. And California, perhaps more so than other states, tends to
allow contract obligations to be interpreted in the light of the history of the
contractual relationship.

More than ten years ago - on January 1, 1993, Network Solutions received a five year grant of monopoly authority over .com, .net, .edu, and .org from the US Government. That grant was supposed to expire after 5 years, on September 30, 1998. This note is being written on September 22, 2003 - nearly five full years after NSI's original contract was to have expired.

The circumstances of that initial contract might raise a few eyebrows - NSI won even though there were others in the running who had significantly greater and proven competence (think "founders of UUnet"), who bid much lower fees.

That original has been amended by the US Department of Commerce no less than 25 times. Those amendments collectively amount to The Great Internet Giveaway, in which control over the core assets of the internet has been abandoned into the hands of NSI/Verisign. As a result, Verisign today has come to effectively control those internet assets that it was originally hired to simply administer.

The amazing largess of the US Department of Commerce towards Verisign has been matched by ICANN.

ICANN has given NSI/Verisign gift after gift after gift. ICANN spent several years not allocating new top level domains (TLDs), thus continuing NSI/Verisign's monopoly, much to the benefit of Verisign's financial bottom line. And when new TLD's were finally allocated, the restrictions that ICANN imposed on the newcomers did nothing but confirm NSI/Verisign's dominance for several additional years. ICANN's division of the DNS name business into "registries" and "registrars" came with a nice prize for NSI/Verisign - that company was allowed to double dip into the system as both a "registrar" and the monopoly "registry" of the largest TLDs. And we ought to
never forget that ICANN, on the private initiative of its outside "counsel" gifted the .com TLD unto NSI/Verisign in perpetuity. And ever since, ICANN has continuously assumed "the position", even over the objections of ICANN's own DNS policy bodies, whenever NSI/Verisign came knocking - one has only to look at the history of the Wait Listing Service to how easily ICANN succumbs to NSI/Verisign's siren song.

Verisign has demonstrated an amazingly ability to negotiate the pants off of the US Government and ICANN.

However, Verisign's ability to wag ICANN and the Department of Commerce has
met with a bit more friction as of late. For example, ICANN showed a bit of backbone when Verisign wanted to race into the early, and arguably reckless,
deployment of internationalized domain names. ICANN and Verisign went head-to-head over a system that was remarkably similar to "SiteFinder" but in the context of internationalized domain names. In that instance, Verisign backed down.

Verisign's "SiteFinder" represents a repudiation of the entire structure of governance of the internet as conceived by the IFWP, the NTIA Green and White Papers, and ICANN itself.

But is there anything that either ICANN or the US Department of Commerce can
do about it?

The authority of both the US DoC and ICANN is made confusing and weak by the maze of cooperative agreements, memorandums of understanding, CRADAs, and purchase orders that exist between ICANN, the DoC, and Verisign/NSI. Rather than mutually reinforcing one another, these documents create a fabric of plausible excuses that allows Verisign to dance this way and that to whatever tune it decides to play - it will take a major legal effort, one that ICANN might not be able to afford, to unravel the mess. And the outcome is
hardly certain. For example, because the DoC and ICANN have chosen to use
weak and ambiguous legal forms such as "memorandums of understanding",
instead of firmly and clearly enforceable "contracts", Verisign might successfully
argue that ICANN and the DoC never intended to establish rights and duties that
can be enforced in a court of law.

And ICANN, by virtue of its grant of permission to .museum to use the same wildcard mechanism that underlies "SiteFinder", has created a
situation in which Verisign can argue that what's good enough for .museum is
good enough for .com - and that if there is a difference, it was ICANN's job to define the boundaries, something that ICANN has not done.

ICANN's authority is further weakened by ICANN's historical failure to exercise controlling oversight over technical operations of DNS and by ICANN's tunnel-vision focus on non-technical matters (such as whether the lack of felicity of the sound of "iii" when spoken made that string inappropriate for use as a top level domain.) Because ICANN has exercised only the most tenuous oversight of important technical matters, such as the operation of root servers, service level obligations of TLD servers, DNS security, data escrow, etc, ICANN is not in a good position to suddenly prohibit Verisign's use of a practice that is not in express violation of any Internet Standard. (Verisign's practice may be in violation of some implied "penumbras" of the Internet Standards, but that is a difficult argument for ICANN to make.)

If one needs a concrete example consider that over the course of the last year the root server operators have established anycast-based replica servers. (I personally consider what they have done to be a very good thing.) However, by any metric this deployment represents a significant change to the critical infrastructure of DNS. This change was made with neither notice to nor approval from ICANN. Verisign has as a consequence been given an opportunity to make equally significant changes and, if ICANN questions them, to ask why Verisign is being singled out?

ICANN is now the victim of its own past behavior - because ICANN has never
dealt with issues of internet technology but has instead focused its attention on economic and business matters with no real link to internet technical concerns, ICANN has squandered its ability to speak with authority when someone stretches a technical standard.

Because of this history, ICANN is going to have an uphill effort to argue that ICANN has the moral or contractual authority to require that Verisign's SiteFinder be curtailed on technical grounds. And because of our legal and economic preference for regulation by competition rather than regulation by fiat, ICANN's arguments based on the economic and business repercussions or SiteFinder can me countered by Verisign saying that the marketplace, rather than ICANN, ought to resolve those issues.

Therefore, it seems to me that ICANN may not possess a sufficiently strong lever to force Verisign to discontinue "SiteFinder".

But what about the US Department of Commerce?

The US Department of Commerce has never clearly established how or why it has authority over DNS. Two reports by the General Accounting Office of the US Congress have suggested that the DoC is floating in the air without any clear
foundation of authority.

Archimedes said he could move the world if if had the right place to stand. By analogy, the US Department of Commerce may find itself powerless because it has never been able to demonstrate why, in our US Constitutional system of delegated and limited powers, it has any power to act. (The lack of power in the DoC does not mean that there may not be power in some other part of the US Federal government, but in the absence of any such body picking up the
sword in these matters, it may be premature at this time to to burn a lot of
pixels on that question.)

To make matters worse, ever since it first became involved in the internet, the US Department of Commerce has intentionally divested itself of authority by adopting the astoundingly stupid Reagan/Thatcher notion that government functions are best done by unaccountable private bodies.

This creates a situation in which Verisign might be able to defend itself against the DoC by confounding the issues with the question whether the DoC has any authority in these matters at all. We ought to remember that time is on Verisign's side - with every tick of the clock and every delay caused by distracting maneuvers, Verisign's income increases.

Despite these questions of authority, there still exists the Cooperative Agreement - the one created more than a decade ago - through which Verisign
derives its role over .com and .net. The DoC, even if there
are questions about its ultimate source of authority, is holding the contract
and has several rights that it could exercise to direct the behavior of Verisign
or even to terminate the contract and transfer .com and .net to
another body.

But does the DoC have the guts to do this? I'm not sure. The DoC has always retreated when faced with acts that in some way could affect the stability of the internet - and there is no doubt that an involuntary transfer of .com and .net to another operator could have non-trivial repercussions.

The DoC has been operating largely through the intermediary of ICANN; it's
going to take a strong and brave person in authority within the DoC to turn around that well established practice and to take firm grasp of the reins that the DoC has over Verisign by virtue of that oft-amended 1995 Cooperative Agreement. Is there anyone in the DoC who is that strong? I believe that there are such people at the DoC. However, those who I know are not necessarily in NTIA's management chain. [CaveBear Blog]

Posted by mikki at 12:04 PM | Comments (0)

September 19, 2003

All SiteFinder, All The Time

The Verisign SiteFinder "typosquat"rhubarb continues.

John Berryhill makes the point on the INTA list that SiteFinder re-activates every domain name ever cancelled by UDRP or other decision.

The Registrars Consitutency of ICANN is considering moving to ask ICANN to ask Verisign to suspend the service.

The domain name VERISGIN.COM is for sale.

A search engine provider, Netster, has sued Verisign over the service.

The point has been made that the .MUSEUM TLD apparently utlizes the 'wildcard' technique utilized by SiteFinder and that ICANN had approved the technique.

My IT guy says "It's as if Avis modified its GPS so everytime you entered a wrong address, it gave you directions to a Sears store."

No comment from ICANN as of yet. SiteFinder returns this for www.whereisicann.com.

[The Trademark Blog]

Posted by mikki at 01:16 PM | Comments (0)

$100 Million Lawsuit Filed Against VeriSign

Popular Enterprises LLC, the parent company of Netster.com, has filed a $100 million dollar lawsuit against VeriSign, Inc. The Complaint alleges antitrust violations, unfair competition and violations of the Deceptive and Unfair Trade Practices Act based upon VeriSign's release of the Site Finder product. The suit requests injunctive relief to prevent VeriSign from operating Sitefinder, and to otherwise cease what Popular Enterprises believes to be its monopolistic practices. [CircleID]

Posted by mikki at 09:48 AM | Comments (0)

September 18, 2003

Site Finder: The Technical, Legal & Privacy Concerns

It is openly admitted , in the same Implementation PDF file, that all accesses to the Site Finder service are monitored and archived. A further worry for users is the privacy policy and terms of service posted on the Site Finder service. Not only does the simple act of mistyping a URL implicitly cause you, the end user, to accept VeriSign's Terms of Service and Privacy Policy without the chance to review and accept or decline either, but critical information as described above is not... [CircleID]

Posted by mikki at 09:10 PM | Comments (0)

September 17, 2003

ISC to Cut Off Site Finder

VeriSign's Site Finder service apparently breaks some ISPs' spam filters, so the makers of a popular DNS package are developing a patch to bypass it. By Leander Kahney. [Wired News]

Posted by mikki at 11:49 AM | Comments (0)

Petition Against Site Finder

We Internet users, who either own domain names or have an interest in the domain name system, wish to object to the VeriSign's Site Finder system. We believe that the system: 1) Breaks technical standards, by rewriting the expected error codes to instead point to VeriSign's pay-per-click web directory, and threatens the security and stability of the Internet; 2) Breaks technical standards affecting email services, and other Internet systems... [CircleID]

Posted by mikki at 11:29 AM | Comments (2)

Brad Templeton in Response to Site Finder Controversy

A harmful, highly unilateral and capricious action. Tons of software out there depended on the ability to tell the difference between a domain name which exists and does not. They use that to give a meaningful, locally defined error to the user, or to identify if an E-mail address will work or not before sending the mail. Many used it as a way to tag spam (which came from domains that did not exist). It is the local software that best knows how to deal with the error. [CircleID]

Posted by mikki at 11:28 AM | Comments (0)

September 16, 2003

VeriSign redirects error pages

This CNET article features our own Karl Auerbach.

Criticism is growing over the company's surprise decision to take control of all unassigned .com and .net domain names, a move that's wreaking havoc on some filtering tools. [CNET News.com]

Posted by mikki at 09:47 PM | Comments (0)

ICANN Silent but IAB Anything But

The Internet Architecture Board has roundly condemned the Verisign action to hijack the Domain Name System. Here is a short excerpt:

The IAB feels that the system VeriSign had deployed for .com and .net contains significant DNS protocol errors, risks the further development of secure DNS, and confuses the resolution mechanisms of the DNS with application-based search systems. The IAB understands the efforts that VeriSign has made to limit the applicability of this system to queries which would normally not correspond to registered domains, and it recognizes the importance of the distribution of IDN-capable systems to end users. While the IAB agrees with VeriSign that rapid adoption of IDN-capable systems is desirable, the IAB feels that the very limited gain in distribution cannot balance the shortcomings of this deployment strategy.

Full information available Right Here

Posted by mikki at 08:24 PM | Comments (0)

The Day Verisign Hijacked the DNS

Yesterday, September 15, 2003, Verisign hijacked the Domain Name System by essentially making a sales tool out of every combination of letters or numbers that is NOT currently registered in the .com or .net heirarchies. Essentially, they are the world's largest "typosquatters."

This hijacking also affects email, or any other service that formerly used "domain not found" messages to process information. For example, if your anti spam software was set to reject any bogus domain names, it will no longer work, and all of that spam will now get through as a "valid" domain. Further, any mistyped email address will divert the mail to Verisign. What they currently do with it is send an error, but in future, they could send you yet more ads for Verisign services.

So how did Verisign get the power to do this? They run the master DNS servers for .com and .net. We have yet to hear from ICANN on this important issue.

Posted by mikki at 12:02 PM | Comments (0)

September 08, 2003

CDT Calls for Privacy Balance in Domain Name Database

CDT has written to the House Subcommittee on Courts, the Internet, and Intellectual Property urging it to consider the privacy concerns raised by the "Whois" database of personal contact information for domain name registrants. At the Subcommittee's hearing Thursday, witnesses called for new measures to force accuracy in the database. CDT has argued for some time that privacy protections can be added to Whois without compromising its valuable uses. September 4, 2003 [Center for Democracy and Technology]

Posted by mikki at 02:02 PM | Comments (0)

September 02, 2003

Use of the DMCA against Domain Name Holders

As if the "Anti Cybersquatting Consumer Protection Act" and the UDRP weren't enough, now they are using the DMCA in order to chill speech by preventing anyone from FINDING it. And who is doing this? Surprize! It's Kazaa, itself a target of overzealous copyright infringement lawyers.

The cease and desist letter is being published on the Chilling Effects website at the link. It demands that Google suspend showing the following domains on their search engine:

a. http://www.kazaagold.com
b. http://mp3download.com
c. http://www.kazaalite.tk
d. http://www.kaaza.com
e. http://doa2.host.sk
f. http://www.k-lite.tk
g. http://www.kazaa-file-sharing-downloads.com
h. http://www.kazaalite.nl
i. http://home/hccnet.nl/h.edskes/mirror.htm
j. http://www.kazaa-download.de
k. http://www.zeropaid.com
l. http//www.kazaalite.nl/downloads.htm
m. http://kazaa.infos-du-net.com
n. http://www.kazaa-lite.tk
o. http://www.kazaa-lite.info

Although it's quite difficult to figure out why, for example, mp3download.com would be infringing kazaa, now the owners of that domain are put in the defensive position of having to explain why they aren't infinging or they MAY be pulled off Google. How Google, as a mere sarch engine displaying content that others have put up, is expected to filter for these domain names and sites to remove things is completely beyond my comprehension.

This is yet another blatent attempt at chilling speech by strongarming domain name holders, NOT directly in court the way they should, but by indirect means of asking a third party to do their dirty work for them.

Posted by mikki at 09:03 PM | Comments (0)

August 29, 2003

Statute of Limitations in Trademark Cases - FORDWORLD.COM

6th Circuit decision upholding an award of punitive damages under ACPA against an individual who registered the name FORDWORLD.COM and attempted to sell it to Ford Motors. The case provides stautory construction as to how to apply ACPA to domain names registered prior to the enacment date of ACPA (November 1, 1999). Also, while courts may sometimes apply analogous state statute of limitation to federal actions, there is no statute of limitations applied to Lanham Act actions.

Aside: FORD is up there with DELTA and UNITED in the list of well-known marks that are not exclusive. This fact is usually deployed in the domain name debate in the context: "how do we know that the registrant of FORDxxxxx.COM targeted Ford Motors and not Ford Models, for example. Well, in this case, the registrant sent an email to the CEO of Ford offering to sell the name.

Ford Motor Company v. Peter Catalanotte, No. 00-75260, (6th Cir. August 28, 2003).

[The Trademark Blog]

Posted by mikki at 01:20 PM | Comments (0)

August 26, 2003

Ye Olde DNS

I've been writing about the intrinsic problem with the use of the DNS as both a technical mechanism and as a source of unambiguous meaning and authority. The problems are much worse than most of the posters seem to note. The current approach assures that the Internet will unravel and worse, that URLs become perversely reused. The commercial terms of service associated with the use of ".com" names exacerbates the problem by imposing arbitrary social policies into the plumbing of... [CircleID]

Posted by mikki at 11:44 AM | Comments (0)

August 23, 2003

Al's Story: Another Small Domain Holder Falls Victim to Flawed ICANN Policy

Al Bode is typical of the many small, individual domain name holders throughout the United States and the world. He is a high school teacher of the Spanish language, not a techie, and he registered the domain IOWAWLA.ORG to provide an online presence for the Iowa World Language Association, a professional association for foreign-language educators in the US State of Iowa, of which he is a member. This domain could in no way... [CircleID]

Posted by mikki at 09:38 PM | Comments (0)

August 22, 2003

The UDRP's Relationship to National Law

[ICANNWatch]

Posted by mikki at 03:06 PM | Comments (0)

August 20, 2003

Yet Another Case of Parody Crushed By Bullies

Threatened with the possibility of legal maneuvering, parody site DontBuyMusic shuts down. Although it would probably win in court, the website decides it just can't afford to be right. By Danit Lidor. [Wired News]

Posted by mikki at 09:45 AM | Comments (0)

August 18, 2003

Barcelona Must Give Back Barcelona.com

FROM Barcelona.com

Press release
The Barcelona City Council has to hand back the domain name Barcelona.com
After 3 years of protracted, convoluted and insidious legal argument, the Barcelona Council has to accept they have no rights to use the domain Barcelona.com, as per U.S. Court of Appeals order of June 2nd, 2003.
All City Council arguments regarding trademark rights, bad faith use of the domain and cybersquatting have been fully denied and revoked by the Court.
On August 16th , 2003, the domain has been transferred back to its original registrant, Barcelona.com, Inc.

Without a doubt by the Court of Appeals, all points of defence used and argued to claim rights on the domain by the Barcelona City Council have been rejected.

The Court of Appeals states that:
1.- Plaintiff Barcelona.com, Inc. Did nothing unlawful in registering and using its domain name “Barcelona.com” and therefore is not a cybersquatter.
2.- the Defendant (“City Council”) was a reverse domain name hijacker as to Barcelona.com, Inc. Domain name.
3.- the City Council has no trademark rights to the word “Barcelona” under either U.S or Spanish trademark law.
4.- Defendant Excelentisimo Ayuntamiento de Barcelona shall transfer the domain name “Barcelona.com” to the plaintiff Barcelona.com, Inc. forthwith.

After these 3 years of legal battle, Barcelona.com, Inc. is going to reopen the commercial website “Barcelona.com” aiming to promote mainly local tourism by giving them worldwide exposure, as was doing 3 years ago, before the City Council broke their aspirations.

Finally, the Court of Appeals has settled this battle with the same common sense as all other processes involving geographical domains have been. Recently the Madrid.com case just to mention another domain involving a city in Spain.

The Barcelona.com case has always been considered by internet experts as the exception as to what a Wipo or a Court ruling should have been.

“Barcelona,com, Inc. will start from scratch again. The City Council has not told the truth from the beginning and expected to win this unjustified case with the contributors money. A Goliath vs. David fight. Justice exists, and even small companies can fight against a giant.” said Joan Nogueras, Barcelona.com, Inc.’s spokesman.

Link to Court of Appeals decision: http://pacer.ca4.uscourts.gov/opinion.pdf/021396.P.pdf

Barcelona.com, Inc.
V.P. Larry Kriv
Spokesman Joan Nogueras (press contact Tel. 34609705073 – info@barcelona.com )

Other interesting links
http://www.whois.sc/news/2003-06/barcelona-appeal.html
http://dmoz.org/Computers/Internet/Domain_Names/Disputed_Domain_Names/barcelona.com/

Posted by mikki at 12:29 PM | Comments (0)

August 15, 2003

No Sunshine After Sunrise for .PRO

Via ICANN.blog, an excerpt from Register.com's SEC filing indicating that there doesn't appear to be a launch date for the new .PRO top level domain name.

Previous misinformation on .PRO's sunrise period that I unwitingly circulated here.

[The Trademark Blog]

Posted by mikki at 12:22 PM | Comments (0)

August 12, 2003

What's Worse Than WIPO? (Hint - they're...

What's Worse Than WIPO? (Hint - they're doing .kids.us) [ICANNWatch]

Posted by mikki at 12:23 PM | Comments (0)

August 08, 2003

Dude, Where's My .Pro?

From a new article on CNet, which never read a press release it wasn't willing to turn into an article: "The names go online in a few weeks, RegistryPro said." [icann.Blog]

Posted by mikki at 12:20 PM | Comments (0)

August 07, 2003

Do Domain Names Matter? - Part II

This is the second part of a 2-part series article arguing that the decentralization of the Internet will allow the DNS to recede to its earlier, uncontroversial role, before all the lawsuits and screaming matches at ICANN board meetings. To read the first part click here.

By Francis Hwang
Another source of pressure on the DNS was the system's shifting role from one that was primarily mnemonic to one that... [CircleID]

Posted by mikki at 02:27 PM | Comments (0)

Do Domain Names Matter? - Part I

This is the first part of a 2-part series article arguing that the decentralization of the Internet will allow the DNS to recede to its earlier, uncontroversial role, before all the lawsuits and screaming matches at ICANN board meetings.

By Francis Hwang
Is it just me, or are we paying less attention to the Domain Name System than we used to? Seems like only a few years ago that the tech-culture world was attuned to every new angle in the ongoing struggle over the DNS' management.... [CircleID]

Posted by mikki at 02:27 PM | Comments (0)

August 05, 2003

Pleadings in WLS Litigation

These PDFs will make interesting reading for WLS watchers. As you'll see from a minute entry on the docket, the Plaintiffs' Motion for Temporary Restraining Order was denied.

I'm especially interested in reading reactions to the Turner Declaration. I'll try to keep current on what's going on. More to come. [icann.Blog]

Posted by mikki at 12:21 PM | Comments (0)

August 01, 2003

Air France wins "typosquatting" case

[ICANNWatch]

Posted by mikki at 12:24 PM | Comments (0)