To the ICANN Draft Guidelines for Accreditation of Internet Domain Name Registrars

February 26, 1999

The Domain Name Rights Coalition (DNRC) appreciates the opportunity to comment on the Guidelines for Accreditation of Internet Domain Name Registrars (Proposed Guidelines)proposed by ICANN on February 8, 1999.

DNRC is a public interest group representing the interests of individuals, small businesses and entrepreneurs. DNRC directors and officers include attorneys who are involved in the day to day practice of Internet law and particularly domain name conflicts. The organization was founded to oppose the 1995 Domain Name Dispute Policy of Network Solutions, Inc., and has continued to be involved in domain name policy discussions including the U.S. Department of State Working Group on Domain Names 1996; WIPO's Second Consultative Meeting on Domain Names and Trademarks 1997; and testimony before the U.S. House of Representatives, Telecommunications Subcommittee hearing on the Future of the Domain Name System 1998.

These comments will first address the Goals and Principles of Registrar Accreditation set out in Section I, Introduction, of the Proposed Guidelines, and then discuss its deep concerns with Section II, Item K. Intellectual Property Issues.

I. Goals and Principles of Registrar Accreditation.

DNRC supports four of the five principles set out in the Goals and Principles. We certainly support Principle 1 that the registration system should be convenient and easy to use from the perspective of individuals or organization wishing to use domain names. It is our clear hope that all individuals, commercial and non-commercial organizations, and businesses of all sizes in both developing and developed countries will have access to low-cost domain names with high quality service.

We support Principle 2 that the registration process should embrace standard principles of good business practice, and note that the registrars obligations in this principle are appropriately limited to those parties with whom he/she has entered into a contractual relationship: namely, the domain name owner and the registry. We think it particularly important for the registrar to maintain some way to continue meeting the needs of its "customers" in the event it goes out of business. To correct any possible confusion that might arise from this phrase, we recommend editing the expanding the phrase "its customers" to "its customers, the domain name owners and[if appropriate] IP address owners" to make clear who the parties are in this matter.

We support Principle 4 aimed to limit the collection of information to only that "reasonably needed for the assignment and use of the name" and to limit its dissemination. Privacy protection is a critical aspect of a database that could one day grow to encompass every man, woman and child on the planet, and every small business and community organization. We wholeheartedly endorse the principle that "Domain name applicants should have an opportunity to register names on behalf of third parties who wish to remain anonymous." This protection is critical for many who will be opposing the political leaders of their countries and for those who fear that their home addresses and unlisted numbers might be misused exposing them to danger and privacy invasions.

We support Principle 5 that "the registration system should promote worldwide access to domain name registration services and encourage the development of alternative business models for successful registration services." We believe this principle is comprehensive and well stated.

Where the DNRC breaks in its agreement with the ICANN proposals is on Principle 3.Principle 3 specifically mentions only the rights of intellectual property. DNRC is surprised and shocked at this language.

A) Should ICANN Be the Champion of Any Rights At All? The act of protecting certain rights, even rights considered noble or fundamental, is fraught with danger for both ICANN and the Internet. As ICANN itself acknowledged in the letter accompanying its third submissions of bylaws to the U.S. Department of Commerce, ICANN is not intended as the governor of the Internet. ICANN performs a narrow technical and coordination function, and must not leverage the management of critical resources into a means of imposing its vision of the future on the Internet. By imposing a requirement that the registrar must police rights, -- any rights--, intellectual property, free expression, what-have-you, ICANN has forced its own judgment and values on the registrar and, by extension, upon anyone who registers a domain name.

Even if the ICANN Board believes that certain rights are utterly necessary to promote the further development of electronic commerce or appease certain stakeholders, ICANN must consider the precedent it sets today. The one fundamental fact that all may know is that the board members sitting here today will not be here in the future. What priorities will a new board set? What pressures will other stakeholders bring to bear to exclude new entrants or promote special interests? Already we see signs that large corporations and political figures wish to exclude names that are critical. Having established the power to enforce such restrictions, can the ICANN Board know for sure that it will not happen? That it will not happen *today* does not stop it from happening in the future. Is this the world ICANN would wish upon the Internet?

Rather, DNRC urges that ICANN recall the wisdom of the framers of the American Constitution. How many Articles and amendments act to *limit* power, rather than expand it? How many begin with the phrase "Congress shall make no law?" The framers knew the danger of empowering an entity, even one with noble intentions and democratic institutions, with the power to do as it wills. By contrast, consider the Constitution of the former Soviet Union and other Eastern European states. Although they promised the protections of openness and democracy to their citizens, these promises were never realized. The powers vested in the institutions of the state defeated the pretty words upon the page. In the first action taken by ICANN - and therefore the first test of it as an institution - ICANN must decide which model it will follow. Will it voluntarily limit its own powers, letting registrars and domain name holders make their own mistakes? Or will it empower itself to do as it thinks best, and thereby risk making its commitment to openness and responsiveness mere empty promises?

B) If ICANN Chooses to Champion Rights, Should it Protect Intellectual Property Above All Else?

In Principle 3, ICANN states that "the registration agreement should protect legal rights(including intellectual property rights ) of the parties." That the only right that ICANN has chosen to expressly protect is intellectual property is clearly contrary to public policy.

As the White Paper noted, domain names invoke rights far beyond intellectual property, and it promised that: "Existing human rights and free speech protections will not be disturbed. "It is domain names that are used by U.S. citizens and increasingly peoples around the world to label and share their personal, political, religious, community and commercial speech. If ICANN believes it must endorse a right within its Principles, then DNRC argues strongly that the right must be open communication and free speech.

The following is an excerpt from the comments to the Green Paper submitted by DNRC, NetAction (a grassroots community-based organization) and Professor Milton Mueller of Syracuse University, and signed by 212 individuals and organizations. We said:

"Open communication is not a U.S. value, but a world value. It is a right found in the United Nations' Universal Declaration of Human Rights, the European Human Rights Convention and the United States' Bill of Rights.

Written in 1948 and celebrating its fiftieth year, the Universal Declaration of Human Rights adopts a right of communication so broad and encompassing that its words might have been written yesterday: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Article 19.

These words, drafted at the United Nations under the chairmanship of Eleanor Roosevelt, are not an abstract ideal, but an international standard "against which the human rights practices of all governments can be measured." President Ronald Reagan, Proclamation of Bill of Rights Day, December 9, 1983.

Similarly, the European Human Rights Convention, written in 1950 and signed by over 21European countries, establishes a set of "Fundamental Freedoms which are the foundation of justice and peace in the world." Chief among these Freedoms is the right to impart information and ideas. Section I, Article 10 of the European Human Rights Convention states:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."

Therefore, the United States Constitution, and its protection of free speech, is not a departure from freedoms around the world, but an expression of these freedoms for U.S. citizens. The words of the First Amendment are clearly among the most treasured of all paragraphs in U.S. law:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

While each country is under an obligation to protect the speech of its citizens under its own domestic laws, the United Nations documents and other treaties provide us with a mandate to protect information and communication at the highest levels of international Internet governance. This protection directs us to adopt a principle of open communication and free expression, which will include the right to register and use domain names for that speech. The Open Communication Principle we propose will place these protections among the fundamental principles of Internet Governance."

"In order to register an Internet domain name, an applicant must show that it offers services via the Internet. Further, specimens submitted in support of the application to show use of the mark must show use of the Internet domain name as a source identifier. The use of an Internet domain name as a mere directional reference, similar to use of a telephone number of business address on stationery, business cards or advertisements, is not use of the name as a source identifier." Trademark Examination of Domain Names, USPTO Website, January 16, 1998.

"71. Recommendation 50 should be amended to allow for pseudonymous registration via an identified agent.

72. RFC 3 paragraphs 52-53 propose that registrants be required to represent that "to the best of the applicant's knowledge and belief, the registration of the domain name does not interfere with or infringe the intellectual property rights of another party". One might argue that this requirement is pointless since it is not at all clear whether a mere registration of a domain name can, without use, infringe the intellectual property of another. Indeed, in the US, a person cannot violate the Lanham Act or the Dilution Act without commercial use of another's mark. The requirement may seem even more innocuous when one considers that many lawyers I have spoken to take the view that in all but the most obvious cases of unfair competition the only way to know whether a proposed trademark, much less a domain name registration, is an infringement is to see what a competent court says. Whatever one may think of this type of legal realism, it demonstrates that many lawyers will have no fear advising people to register whatever they want and let the courts sort it out later; the rule will therefore stop only the highly scrupulous (and those without legal advice) without in any way daunting the ethically dubious. 73. I am concerned, nonetheless, that the phrase "interfere with or infringe" requires too broad a representation by the registrant. If Alice and Bob both have registered the same trademark in different sectors and/or jurisdictions, and Alice is aware of Bob's registration, how can Alice give a representation in good faith that her registration, which prevents Bob from registering his mark in that gTLD, "the registration of the domain name does not interfere with or infringe the intellectual property rights of another party"? If the one accepts that mere registration without use interferes with a trademark, which appears to be WIPO's view at times, then by registering the trademark in a gTLD Alice interferes with Bob's rights. There will be some names, like "united," that in theory no one with a trademark containing the word could register because everyone understands that one person's registration "interferes" with the holder of a trademark in a different sector's ability to register that term. (Note also WIPO defines "abusive registration" in part as a registration that "frustrates the complainant's desire to reflect its rights in a domain name," RFC 3, para 244. See infra paragraphs - for a discussion of this proposed definition.) 74. Furthermore If Bob is ignorant of Alice's registration (the proposal creates no duty to investigate), he can make the representation, but there seems no sound reason to reward Bob's ignorance at the expense of an Alice too honest to make the representation. 75. Additionally, for the reasons noted in paragraphs and , the reference to "intellectual property rights" generally is much too broad. Bringing in non-trademark issues will unnecessarily complicate issues, destroy any hope of consensus, and to the extent that RFC 3 were adopted without major revision, would compound the resulting unfairness."

105. "Submission to Jurisdiction. WIPO suggests that registration authorities should require registrants to enter into a third party beneficiary agreement in favor of any party in the world who feels that their intellectual property rights have been infringed by the registration. In this agreement the registrant would agree to be sued by any third party (1)in the country of the registrant's domicile, and (2) the country where the registration authority is located. RFC 3, para. 119. The second prong is disturbing. To understand why requires a definitional detour.

106. WIPO uses the term "registration authority" to encompass both Registrars (who take orders from registrants) and Registries (who maintain the underlying database of domain names). RFC 3, Chapter 2, note. 24 states that, "The term registration authority as used in his Report may encompass in certain contexts the "registry" and the "registrar," as those terms are used in the White Paper. WIPO takes no position on the appropriate division of administrative and management responsibilities among the chain of authorities in the DNS, as this is a subject properly for ICANN's consideration."

107. Given this definition, the suggestion that a registrant agree to jurisdiction where the "registration authority" is located creates problems as it encompasses both registries and registrars. Today, when the sole gTLD registry and the most important gTLD registrant are located in the USA, this means that any registrant in a gTLD agrees to be sued in the USA. I suspect that citizens of other countries may dislike this subsidy to the US trademark bar.

108. If, as seems likely, we swiftly move to a world where there are many gTLD registrars distributed around the world, then it will be increasingly less problematic to ask registrants to agree to jurisdiction in the country where the registrar they deal with is located--although I wonder whether the consumer laws of some countries will allow this in a consumer sales contract if it means agreeing to foreign jurisdiction. Until that point, however, even to require an agreement to be sued where the registrar is located is to require contractual agreement to a trial in foreign forum that may be far away, in a foreign language, with foreign procedures.

109. On the other hand, the more we move to a world where there are many gTLD registrars distributed around the world, the more it is problematic to expect the registrant to agree to jurisdiction in a third country where the registry may happen to be located, a highly mobile entity with which the registrant has in any case had no direct contact. Even if there are registrars in many countries in competition, there will be few registries and the registrant may not have any way to select among them. I have doubts about the enforceability of such an agreement as a matter of consumer law. More to the point, I do not see it as fair.

110. More fundamentally, it is unfair to impose jurisdictional concessions on registrants without imposing correlative and equal obligations on those who seek to use the WIPO-ADR proceeding to take away their registration. As further explained below, the imposition of correlative and equal obligations becomes particularly important if the registrant loses the WIPO-ADR proceeding and seeks to exercise her right to challenge the outcome in court."