About DNRC
The Domain Name Rights Coalition (DNRC) has been defending the rights
of small business interests and individuals since early 1996. DNRC has
represented the voices of small businesses, entrepreneurs and
individuals at the U.S. State Department, before the Department of
Commerce, in Geneva at the World Intellectual Property Organization,
at the White House, and before congressional committees. The DNRC is a
recognized Non Governmental Organization (NGO) by WIPO.
Dissent to the Testimony of the Intellectual Property Constituency
ICANN, and the DNSO that is a part of it is now trying to execute a
policy agenda before it has created the participatory structures that
would allow its decisions to be accepted and trusted by a broad
spectrum of stakeholders. The Intellectual Property Constituency was
officially approved and recognized by the Interim Board of ICANN in
May of 1999, despite the fact that individuals are not allowed to be
voting members. There are currently six separate constituency groups
in ICANN, two petitioning for recognition which has not yet been
granted. Those two include the Non Commercial Domain Name
Constituency, and the Individual Domain Name Owners Constituency. It
should be of note that individuals are not allowed in any other
constituency as full voting members, yet ICANN is still debating
whether a constituency for individual voices is even warranted or
desirable, thus disenfranchising writers, artists, professors, and
political activists. Many individuals are also intellectual property
holders in their own right. It
is also of significant note that the General Assembly has not yet been
formed, and neither has the mechanism for a membership structure. This
combination of factors effectively keeps individuals silent in the
policy
making of ICANN, despite the fact that individuals make up the
greatest
number of Internet users, intellectual property holders, and
innovators of
this medium.
It is also important to note that of all of the members of the
Intellectual
Property Constituency, only one is a public interest group. The Domain
Name Rights Coalition was added as a compromise during the Berlin
meeting
of ICANN in order for ICANN to grant recognition. Due to its late
addition, the DNRC was unable to provide input regarding bylaws of the
IPC,
participate in names council elections, or give opinions regarding the
membership structure of the IPC. Further, the DNRC had no prior notice
of
its inclusion as a compromise member of the IPC until the Berlin
meeting
itself, and was not even asked whether or not it wished to be
included.
Thus, the DNRC is not a part of the consensus mentioned in the IPCUs
testimony. It should also be noted that individual members of many of
the
noted associations and industry groups were never asked about the
claimed
consensus, including the American Bar AssociationUs Intellectual
Property
Section, or the International Trademark Association. This calls into
significant question any claim of consensus from intellectual property
owners.
ICANN and Internet Governance Reform
As specifically noted in the White Paper, ICANN is meant to provide
"technical stability," not "Internet governance." It is not the realm
of
any private corporation regardless of its claimed consensus, to
"govern"
such a vast means of communication and commerce as the Internet
without any
type of accountability or oversight. The claims that the Internet is a
form of commerce that must be "governed" at all is missing the "big
picture." The Internet is perhaps the greatest boon to communication
that
has ever been devised. Artists, teachers, writers and others may now
"self
publish" their works to an audience in the thousands or even
millions.
Individuals and small businesses can go directly to the public with
criticism, opinion, political speech, religious messages, as well as
their
products and services. This is the InternetUs greatest strength, and
what
has made it the rich field for commerce that it has
become. "Governance"
of any sort will stifle the very medium it seeks to protect. Any
structure
that is
going to make even technical decisions needs to address and represent
these
interests.
Specific Concerns of the IPC
No privatization process of Internet governance was set out by the
Secretary of Commerce in the White Paper. The distinction between
technical management and governance is key to the understanding of the
desires of the special interest groups involved. There is no technical
aspect to regulating Internet content via copyright, no technical
aspect to
regulating Internet content via trademark rights in domain names or
elsewhere. The "currency of the Net" is not intellectual property. It
is
the free flow of ideas and communication. Intellectual property is a
small part of this whole. Regulation for the benefit of this small
part
will necessarily stifle the vast majority of communication.
The testimony of the IPC once again calls for extra legislative and
extra
judicial
protection of intellectual property on the Internet. In reality,
protection of intellectual
property already exists and is a governed directly by the Congress and
enforced by the Judiciary. This is as it should be in a democratic
society. Instead, the IPC wishes
for an unaccountable international body, the ICANN to allow another
unaccountable international body, the World Intellectual Property
Organization, to create new international law.
Intellectual Property Community Representation on the ICANN Board
While many in the IPC feel that intellectual property concerns have
been
treated as "second class citizens" in the process, that is precisely
opposite from what the DNRC and many others feel is the
case. Intellectual
property attorneys are disproportionately represented across all
facets of
the DNSO. Intellectual property interests have "held hostage" the
creation of new generic top level domains which would foster
competition in
the registry and registrar industries. It is widely believed that the
US
government, and the European Union, have granted a virtual veto on new
gTLDs until the concerns of the trademark community are
addressed. Intellectual property interests, while representing only a
small
fraction of Internet users, have attempted to create consensus at
every
IFWP meeting, every WIPO forum, and every
ICANN meeting thusfar, and have failed. One of the largest
intellectual
property groups, INTA, has not even asked their membership for their
opinion regarding Internet issues. Indeed, the vast majority of INTA
members are not involved with the Internet in any way.
Concerns of the entertainment/copyright and trademark sections of the
IPC
The very thought that the IPC would include entertainment and
copyright
groups should cause significant pause. ICANNUs role concerns domain
names
and IP numbers, not the content of emails, web pages, or web-based
telephony. Since one cannot copyright a domain name or an IP number,
it
follows that copyright concerns are not germane to ICANNUs mission.
Copyright, by definition, is a content based branch of law, carved
from our
First Amendment freedom of
expression. What business does an unelected private corporation have
in
assessing Internet content in any way, shape, or form? The thought
should
send serious danger signs to this Committee. The United States
Congress
decides what US copyright and trademark law does and does not
include.
Through treaty ratification, the United States Congress decides with
what
International standards the US will comply. These decisions are
enforced
by the Judiciary. All of this is in strict accordance with the checks
and
balances set forth by the Constitution of the United
States. Circumvention
of these well established procedures would be a grave mistake indeed.
"Cybersquatting" is an undefined label that is often used to refer to
any
use of a domain name that a trademark holder does not like. As the
Committee knows, there are 42 classes of trademark in the United
States.
It is quite possible for a 42 or more different non infringing uses of
the
same trademark to occur simultaneously. It is also possible for
thousands
of non infringing uses of the trademarked word or phrase to be used by
others. If one of these uses happens to be part of a domain name, that
is
hardly cybersquatting. If, however, an infringing use is part of a
domain
name, current laws in all countries protect the person injured by this
use.
The misnomer of "cybersquatting" is a rallying cry under which some
intellectual property groups wish to nuzzle the camelUs nose under the
tent
flap. The testimony of the IPC and its continuing wish for
"governance"
shows that "cybersquatting" regulation would be only the beginning of
content regulation that could crush the vibrant communications aspects
of
the Internet, and stifle the voices of millions if not billions of
individuals.
Dispute Resolution
The continued cry for a uniform and mandatory dispute resolution
policy
regarding Internet domain names has never achieved consensus in the
Internet community. Despite repeated attempts by intellectual property
interests, the public outcry against such a proposition has been
enormous.
Attempting to limit mandatory dispute resolution to "bad faith"
registrations will not be of much assistance. "Bad faith" is a term
much
like "cybersquatting;" essentially undefined and capable of too much
vagueness and interpretation to be left to an unaccountable private
corporation to decide.
Famous Mark Protection
Again, the definition of a famous mark is made on a country by country
basis by their duly elected representatives in the case of a
democracy. In
the United States, infringement of a "famous mark" is not possible if
it is
being used for non commercial purposes such as criticism, opinion,
comparison, etc. The "famous mark" proposals that have thusfar been
promoted by the IPC do not contain this important allowance for free
speech
and expression.
Lack of Intellectual Property Expertise on the ICANN Board
DNRC sees this as a feature and not a "bug." The real problem with the
ICANN Board is lack of technical expertise. The White Paper defined
ICANN
as a technical management body, not a body for management of
intellectual
property.
Conclusion
The Domain Name Rights Coalition does not agree with the testimony
presented by the Intellectual Property Constituency of which it is a
member. Intellectual property rights are indeed an important issue on
the Internet as well as elsewhere. However, they are a small
percentage of the whole of Internet communications. The Internet is no
different than any other medium regarding intellectual property
law. In fact, policing oneUs intellectual property on the Internet is
far easier than in many other types of communication. The technology
of "search bots," "search engines," and already existing intellectual
property search services that have branched into Internet searches
ensure that trademark and intellectual property holders will have an
easier time finding infringements than in print or broadcast
media. Current laws, as applied, ensure the rights of intellectual
property owners while balancing the much more vital interests of
freedom of expression, freedom of speech, and rights to non commercial
and fair use. No "cybersquatter" (used here to define a trademark
infringer who is using a domain name either to confuse the public, or
a person who has registered a unique registered trademark with no
other use but to force a trademark owner to purchase it) has ever won
a court case against an intellectual property holder in any court in
the world. The percentage of domain name disputes against the
percentage of domain name registrations is rather than
increasing. This is not a problem that should be addressed by an
unaccountable, unelected private corporation, nor should a dramatic
expansion of the rights and prerogatives of trademark and intellectual
property owners be quietly imposed on the global Internet community by
fiat under the rubric of "technical coordination" rather than passed
through the give and take of legislative processes through which such
matters are normally handled