Comments of the Domain Name Rights Coalition
To the IAHC Draft Specifications for Administration and Management of gTLDs

I. INTRODUCTION

In these Comments, the DNRC agrees with IAHC that Internet space is a "public resource" and must be better organized to allow for easier navigation and voluntary grouping of parties with similar purposes, such as trademark holders. Given the broad charter of the IAHC to operate in the "public trust," which we read as public interest, and the great need of the Internet community to organize many aspects of Internet space, we believe that the IAHC has construed its mission and its recommendations too narrowly. An entire community is waiting for better allocation of space, not just trademark owners.

To help the IAHC better serve the broader interests of the Internet community, the DNRC Comments address three points: the role of IAHC, the need for public Internet spaces in addition to the .TM trademark spaces recommended by IAHC, and the creation of a diverse, robust and competitive registry system than that envisioned under the IAHC Draft Specifications for Administration and Management of gTLDs ("Draft").

II. ALTHOUGH IAHC LEGAL AUTHORITY DOES NOT EXIST, THIS PROCEEDING IS IMPORTANT AND DNRC CHOOSES TO PARTICIPATE.

Nevertheless, we view this discussion as a noble experiment in self-governance. To the extent that the Internet can develop self-governing, democratic structures that represent all of the communities communicating over the Internet, noncommercial and commercial, we believe that the advance of government regulation over the Internet will be stayed. To that end, we participate in a discussion that we think is meaningful, important and far-reaching.

III. TOGETHER WITH IAHC, THE DNRC AND ALL PARTICIPANTS TO THIS PROCEEDING ARE SERVING A ROLE ANALOGOUS TO THE ZONING BOARD OF A YOUNG TOWN.

In essence, the Internet has become the vehicle of a new, global digital economy which has enveloped the physical world, altering traditional concepts of economic, political and social relations. A Framework for Global Electronic Commerce, Ira C. Magaziner, Senior Advisor to the President for Policy Development, Background section, Draft #9 - December 11, 1996, http://www.iitf.nist.gov/eleccomm/glo_comm.htm. ("Framework for Electronic Commerce")

The questions before the Internet community involve the most fundamental issues of organizing Internet space so that existing communities in physical space can easily navigate and find areas of Internet space under rules which are familiar and comfortable. Accordingly, the role played by the IAHC, the DNRC and all participants to this proceeding is analogous to the zoning board of a young and booming town. It its early days, the town had few rules about building, but as the population grows and traffic increases, there is a need to segregate public from private space, to separate residential from industrial areas, and to zone areas for merchants, parks and playgrounds.

Zoning boards, regardless of the personal and professional interests of their members, must operate in the public interest to promote "the health, safety or general welfare of the public." Purpose of Zoning Ordinances, Virginia Code Annotated Sec. 15.1-489. In the Commonwealth of Virginia, the zoning boards have been charged to give "reasonable consideration to each of the following purposes" (in the order set out in the Virginia statute):

• Adequate access and public safety;
• Reduce congestion in public streets;
• Facilitate the creation of a convenient, attractive and harmonious community;
• Facilitate the provision of adequate police and fire protection, disaster evacuation; schools, parks, forests, playgrounds, recreational facilities, airports and other public requirements;
• protection against the destruction of historic areas;
• protect against overcrowding, undue density, obstruction of light and air; and
• encourage economic development activities that provide desirable employment and enlarge the tax base.

The DNRC submits that IAHC has advised us to jump too quickly to the seventh priority, commercial development, while overlooking the first six priorities.

Whether the Internet will accept the IAHC proposals depends on how expansive and inclusive the IAHC vision becomes in the next draft (due January 31, 1997) and how much attention it chooses to devote to the space needs of individuals, schools and libraries, community groups, social groups and political groups. They, like trademark holders, seek easily navigable space on the Internet operated under rules familiar to them from physical space.

It is our fear that if the only space allocated, by the advice of the IAHC, is trademark, we will be creating an Internet community which is unlivable -- laying the groundwork for a ghost town.

IV. THE IAHC HAS PROPERLY IDENTIFIED THE NEED FOR A SET OF PUBLIC SPACES FOR TRADEMARK, AND RECOMMENDED RULES THAT TRADEMARK REGISTRANTS WILL FIND INTUITIVE AND COMFORTABLE.

In Section 5.4, Second-Level Domains, the IAHC proposes the creation of a 60-day publication period. For trademark holders, such a public notice period is acceptable as a matter of common practice. Although we wonder why the IAHC has proposed a 60-day public notice period and the International Trademark Association, in its recently-released proposal http://plaza.interport.net/inta, has proposed a 90-day public notice period (the U.S. Trademark Office only has a 30-day public notice period, and it is our sense that timeframes should work faster, not slower on the Internet), we recognize that public notice periods are proper and accepted practice in U.S. trademark practice and accept the consensus of the IAHC, with its leaders from the World Intellectual Property Organization and International Trademark Association, that public notice is a standard practice worldwide.

Similarly, the certifications of the proposed domain name application and renewal applications listed in the Appendices are in keeping with trademark practice. For U.S. registrants, these proposed certifications will be functionally identical to the U.S. trademark registration. Currently before the U.S. Trademark Office, applicants certify that they are the owners of their marks and that their proposed registration is not infringing to prior users. The proposed language for the domain name certification is very close:

The applicant believes that the intended use of the domain name will not infringe any rights of any other party." IAHC Draft, Appendix A - SLD Application Requirements.

For trademark holders, such a certification makes perfect sense.

A. Great care has been shown to allocating trademark-specific Internet space, but where are the space allocations for other communities just as deserving of attention?

The DNRC has searched in vain through the IAHC draft for a signal that other much-needed public and private Internet spaces would be recommended and/or allocated up-front in a manner similar to the .TM spaces. We were sorely disappointed to find that only the trademark community received space. Accordingly, as a part of the Internet "zoning board," we take this opportunity to recommend the addition of the following spaces to every country (in its own language equivalent) and also allocated at the International level:

• .POL for Political Speech. According to the Framework for Electronic Commerce, there is great value in political speech on the Internet: "the Internet democratizes societies and empowers citizens with information." The vital space of a town hall or public meeting house should be made available to every community and encouraged in every country code.

• .LIB and .SCH should be allocated upfront for Libraries and Schools. Both of these institutions are coming online in record numbers, particularly as industry and governments make the funds available for projects and technological developments drive down equipment costs. Again referring to the Framework for Electronic Commerce, the importance of easy access to this important information is key:

  Students across the world are benefiting from instantaneous access to far flung libraries, universities, and other troves of data via the World Wide Web. A Framework for Electronic Commerce, Background section.

  Space must be allocated for these groups to find each other and for a information-seeking public to find them.

• .PERS for Personal Speech. There is a great gap in current Internet space, for there is no room or allocation for personal space. Currently, personal Web sites must be buried under an ill-fitting categories. The problem would be easily solved if a .PERS, or its equivalent, were allocated under each country code, and also in the .INT International space. It will then be intuitively obvious to everyone where to go to find the personal brochures, pamphlets, pictures and stories that have made the Internet such a warm place.

  For those who have not yet seen baby pictures posted within a few hours of the birth to be shared with family and friends across a continent, stories of travels shared daily with friends worldwide, or artwork scanned and posted as soon as it is finished, the Internet will offer a new dimension of personal communication. As Central Park within the middle of New York City allows people to get a breath of air, a personal moment and a free thought, the allocation of a public personal space on the Internet will provide important breathing space (a priority of all zoning board).

B. It is Only Fair that Domain Name Owners within these new Political, Educational and Personal Internet Spaces Operate Under Rules Similar To Those of Physical Space.

The IAHC has recommended a system of certifications and public notices that will allow trademark owners to operate in an almost-intuitive manner online. The transition from physical space to cyberspace will be quite easy, thereby decreasing risk and increasing use.

The DNRC believes that in public Internet space, as in physical spaces, schools, libraries, political and community groups will choose their domain names with the same care that they choose their names in physical space. The purpose of these names will be identify and distinguish the group within the community. Such names in the physical world do not need to run the gauntlet of public notice and such a requirement would be extraordinary and unnecessary. To impose such a requirement would cause immense problems in cyberspace and very likely drive away the very groups we are working so hard to encourage.

In addition, the delay of a public notice period would be completely counter to our societal goals: we want public safety, political and community groups to be able to respond to the needs of their communities as quickly as possible. For example, following a disaster, natural or manmade, there will be the increasing demand for new domain names to organize information. After the last earthquake in California, people set up websites to pool information about communities and individuals. Rather than continuing to try to call the West Coast, Internet-savvy family and friends reached the websites, thereby freeing the cellular system and other communications infrastructure for the emergency medical and rescue calls that were critical during the hours after the disaster. It is clear that domain names for public emergencies should be processed as fast as the automated queues of the registrars can handle them (approximately 48 hours and dropping, according to Network Solutions, Inc.).

Further, public notice periods would delay the usefulness of a community, political or medical site, perhaps long past its purpose. While a 60-day public notice period is normal to a commercial entity that envisions years of investment in a brand name, it is far beyond the planning times of most community organizations. A neighborhood block party will be completed and forgotten within sixty days; an online protest of the passage of the Exon Amendment to the Telecommunications Act (Communications Decency Act) will be overdue and untimely, and the December notice from the PTA about the dangerous new toy will be delayed long past Christmas, resulting in an untold number of children needlessly hurt.

We note in passing that even commercial names in physical space are not subject to a public notice period in the United States. Registration of a new corporation's name in the State of Delaware can take place within a few hours, subject only to a first-come, first-served name check.

Overall, in the physical world, a Little League team, a Brownie troop, a religious institution and a community volunteer group do not have to undergo a period of public scrutiny and comment. In the equivalent spaces of the Internet, such notices will be unnecessary, burdensome and destructive to these groups and the organization of these spaces.

C. No Party, Private or Corporate, Should be Asked to Waive the Protections of Subject Matter and Personal Jurisdiction, or Venue as Recommended by the IAHC.

Recommended language of the IAHC proposes that domain name applicants, private and corporate, waive legal protections provided by legislatures and courts worldwide. The DNRC strenuously objects. According to the IAHC Draft, Appendix A, a domain name registrant must agree to the following extraordinary statement:

That the applicant submits to the personal and subject matter jurisdiction and venue of a competent tribunal in the country where the registrar resides for purposes of any action brought under trademark law, unfair competition laws, or similar/related laws arising out of actual or intended use of the domain name applied for; and applicant waivers all rights to challenge such personal jurisdiction, subject matter jurisdiction and/or venue. IAHC Draft, Appendix A, Section 11.1.

Accordingly, we will limit our response to raising some basic questions about why such waivers and such deep damage to valued due process protections are necessary. We ask that the "old guard" of Internet protectors, namely, the Internet Society, National Science Foundation, Internet Architecture Board, and other participants in IAHC think carefully and delete these waiver provisions immediately.

In brief:

• How and why should a domain name applicant waive subject matter jurisdiction? Subject matter jurisdiction is the ability of a court to hear a certain type of case and it cannot be waived in the United States and we expect worldwide. In the United States, a court cannot waive subject matter jurisdiction and, by definition, a court cannot be a "competent tribunal" if it does not have subject matter jurisdiction to hear the case.

• Why should a domain name applicant, either individual or corporate, be forced to waive personal jurisdiction to obtain a domain name? Personal jurisdiction in the United States is a constitutional protection which limits states and courts from reaching "persons or things outside their borders" Civil Procedure, Friedenthal, Kane & Miller, P. 97. Courts worldwide are struggling with the question of jurisdiction for activities conducted over the Internet, just as courts one hundred years ago evaluated new questions of personal jurisdiction as people and companies expanded the geographic scope of their activities using telegraphs and telephones. We see no reason to preempt or circumvent this process. We certainly see no reason to ask individuals to waive constitutional rights of where they can be called before a judicial tribunal merely from the filing of a domain name application.

• Why is the court of the registrar the appropriate site for a lawsuit between two parties seeking the same domain name? According to the IAHC Draft, "Registrars will be initially allocated equally to each of the six (6) ITU designated geographical world zones." IAHC Draft, Sec. 4.2. Thus, the location of the registry will be increasingly invisible and irrelevant to the domain name applicant. The DNRC submits that it is only right and fair that the location of the disputing parties be evaluated in deciding where the lawsuit may take place.

• Regarding service of process, why would the IAHC want to make individuals appoint themselves as agents? As DNRC and the IAHC know well, many domain name applicants are individuals. The concept of "agent for service of process" is a uniquely corporate one. Service of process is the way courts give notice to a defendant or other party to a lawsuit that there is a proceeding and that they should appear. When the defendant is an individual, every country has well-developed laws as to how the individual is to be notified. In the U.S., for example, we generally want the individual to receive the notice personally and we do not allow it to be left with, say, the individual's nine year old child if no one else is at home.

  Corporations, however, do not have physical entities and therefore, states and countries make them appoint people who will receive notice of lawsuits and other legal matters. When a corporation expands its activities into a state beyond its state of incorporation, the state will generally make it appoint a person local to the state to receive any legal notices from local employees, vendors and customers who may have disputes and lawsuits. But our legal practice has always drawn a clear line with different sets of rules and protections for individuals and corporations. Why would we want to waive these valued rights by the mere filing of a domain name registration?

Overall, the DNRC recommends that the Internet community and that IAHC propose more public spaces, allow participants to operate in these spaces under rules corresponding to those of physical space and not require individuals and corporations to waive much-valued legal protections.

V. THE DNRC SUPPORTS REGISTRY COMPETITION AND SUBMITS THAT SOME SIMPLE STEPS WILL MAKE THIS COMPETITION MORE DIVERSE AND COMPETITIVE.

The DNRC supports a competitive registry environment, and feels that further steps should be taken to ensure that the registry business is a viable one and that the spirit of competition prevails.

A. The DNRC does not support shared gTLD or shared second level domain space.

B. The DNRC Questions Whether the Council of Registrars Will Be Seen As An Attempt At Anti-Competitive Activity.

Rather than a centralized and highly powerful CORE, we advise the creation of a loose and optional union of registrars in an international trade association . This Association could appear before the World Intellectual Property Organization and the International Telecommunications Union to lobby for the common interests and needs of its members, but policies, procedures and pricing models would be matters left strictly to the individual registries.

C. The DNRC Recommends A Hybrid System to Encourage Competition and Protect Registries.

1. Moderated Sites

2. Unmoderated sites with immunity

For registrars who choose to only be registrars alone, and to rely on the voluntary incentives of congregating groups rather than the policing power of contracts, we hereby recommend immunity for the registrar from the charges of contributing to or diluting intellectual property rights by virtue of acting as a registry. This proposition is completely in keeping with United States trademark law, 15 United States Code, Sec. 1114(2), in which a printer of signs, banners or newspapers is not required to be the "intellectual property police" of all intellectual property with which he/she works. Rather, the printer is considered an "innocent infringer" and, in the event an injunction is obtained against the further use of the intellectual property by the party that contracted services with the printer, the printer must stop printing. The printer does not have to pay damages -- he/she is not involved!

The IAHC should adopt the model of the "innocent infringer" as the consensus that the Internet supports for registries that choose not to police their marks. This immunity would allow registries to drop or never adopt the hated Domain Name Dispute Policies. In an unusual alliance in late 1996, the DNRC and Network Solutions, Inc. drafted and together submitted a proposal regarding registry immunity to the State Department Working Group on Domain Names. The text is attached as Exhibit I. Immunity is proposed only for the direct acts of (a) registering and (b) not revoking domain names. All other acts of negligence or malfeasance would, of course, subject the registry to suit. We request that the IAHC adopt the language and intent of this proposal in its next draft as an option for registries. In our discussion with clerks and judges, we believe that the consensus of the Internet community that such registries should be protected, like the printer, as "innocent infringers" would be adopted and followed by courts.

This immunity would greatly reduce the operating costs of a registry, and therefore, make it cost-effective for certain registries to devote themselves to better organizing political, community and personal domain names space. As a matter of policy, we ask that the registries who undertake to manage the proposed .POL political speech, .LIB and .SCH educational speech and .PERS personal be required to choose the non-mediation, immunity path. Similarly, we would expect that .TM spaces will be assigned only to registries in the former, moderated category which agree to publish notices, monitor and protect the domain name space.

We note in passing that the random number alternative may well be a viable option for a registry to undertake by choice. As an option for all non-trademark owners or for all who seek to avoid conflict with trademark owners, it is neither realistic nor practical. We do not assign random numbers to children's sports teams to avoid their use of a animal trademarked to a professional sports team. Similarly, random numbers will not solve the commercial/noncommercial allocation concerns discussed above.

V. ADVANTAGES OF THE DNRC VISION FOR THE INTERNET

• Much better organization of Internet space. Not only will trademark owners have their space, but other worthy groups will be able to assemble with like-minded domain name owners;

• The voluntary separation of Internet space will protect trademark owners by giving them less Internet territory to patrol. One of the criticisms of the IAHC draft from the community of trademark attorneys is that it would make life worse, not better for trademark owners in cyberspace:

  Of the six attorneys interviewed for this article, most said that such measures [IAHC proposals] ... would likely make matters worse. For one thing, under the proposal, companies with exclusive rights to a name would have to police more Internet real estate to ensure that no one infringes their trademark. Legal Times, Week of January 6, 1997, p. 2.

• The DNRC proposal will introduce areas in which trademark owners need not patrol. Thus, according to our discussions with judges and their clerks, JANEMCDONALDS23145.PERS would no more need to be policed by McDonalds that in a physical space where Jane might post her name outside her house.

• The protections of a robust communications and free speech system will be maintained. In its decision setting aside the Communications Decency Act, the three-judge panel in Philadelphia explained that "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion. ACLU v. Reno, 929 F. Supp. 824 at 883. Commercial speech is much more easily regulated, as broadcasters, cable operators and those who seek to advertise liquor and cigarettes over these communications mediums can attest. For those seeking to keep the Internet free from government regulation, we believe that it is the noncommercial speech that continues to make the strongest argument for the "hands-off" approach by governments.

VI. DNRC RESERVES THE RIGHT TO RESPOND TO THE JANUARY 31 RECOMMENDATIONS

VII. CONCLUSION

We urge redrafting of sections of the IAHC recommendations in accordance with the goals, recommendations, and comments set out above.

Respectfully submitted:
DOMAIN NAME RIGHTS COALITION
http://www.domain-name.org

/s/ Kathryn A. Kleiman, Esq., General Counsel

/s/ Michael T. Doughney, Executive Director

/s/ Harold Feld, Esquire

/s/ Robert Cannon, Esquire

EXHIBIT 1
REGISTRY IMMUNITY PROPOSAL
SUBMITTED BY NETWORK SOLUTIONS, INC. AND THE DOMAIN NAME RIGHTS COALITION TO THE STATE DEPARTMENT WORKING GROUP ON DOMAIN NAMES
NOVEMBER 25, 1996

BE IT RESOLVED THAT the Advisory Committee recommends a national legislative initiative which would immunize Internet registries that register domain names on a first-come, first-served basis. The legislation would simply state that registrars of Internet domain names, who register domain names on a first-come, first-served basis, do not, by virtue of registering domain names, contribute to, dilute, or otherwise aid or abet the infringement, dilution, or other violation of intellectual property rights of registered trademark and trade name owners.

This immunity would not be accorded to any Internet registrar that suspends, deletes or revokes any domain name based upon receipt of allegations of legal harm from a trademark or trade name owner based on theories of infringement, dilution, or other violation of intellectual property rights. The legislation also would include a provision that a registrar, by allowing the mere continued use of the domain name after receiving such allegations, does not engage in contributory infringement, dilution or other violation of intellectual property rights.

This legislative immunity would not apply to any other function performed by the registrar or provide immunity for registrar negligence or malfeasance of any kind.