Democratic Internet Governance and Individual Rights

Kathryn Kleiman and Harold Feld, Domain Name Rights Coalition

Good Morning. As I was just introduced I am Kathy Kleiman, general counsel and co-founder of the Domain Name Rights Coalition. This is Harold Feld, assistant general counsel and secretary of the organization. The Domain Name Rights Coalition was founded almost two years ago in response to the Domain Name Dispute Policies of Network Solutions, Inc.

These policies essentially equated domain names with trademarks and said that if a domain names looked like a trademark, it could be put on hold if the domain name holder did not also have a federal registration, regardless of whether there was any likelihood of confusion, regardless of whether there was any infringement, regardless of the strength of any common law mark that may be out there, and regardless of even whether the domain name owner was using the domain name in any kind of commercial context. As we predicted, and what happened pretty soon, was that all sorts of domain names started going on hold, particularly those that involving small businesses, which did not have trade marks, political and personal speech and, one of our favorites, political and commercial parody. I should also add that the Domain Name Rights Coalition is comprised of lawyers and technical people and particularly lawyers who were technical people.

The issues have certainly expanded since the domain name conflicts. We have the Green Paper now and we are here with one major message: that we would like to work together. We think we have been given a framework for discussion and a really good set of principles to work with. But there are still lots of questions and nothing is solved by any means. I agree with John [Wood, first speaker] in that this the end of the beginning. But the Domain Name Rights Coalition votes with the Administration and we want to work with the Administration to get the details of the Green Paper worked out. This is the right path.

To those I have met before in Washington, Geneva, and over the Internet, we are going to cover some old ground here. But that is because some of the old concerns are raised again. Just when we thought they were solved, they are raised again by the Green Paper and so we are back to some of the old discussions and debates.

There are four major concerns I have about the Green Paper.
1) One is that it is lacking any kind of principle discussing the Internet's use for communication and free speech, (the way we have been using the Internet for the last 15 years).
2) The Board needs much more diverse representation.
3) We need detailed assurances of an open process of evaluation and an opportunity to comment on the issues that the Board is looking at.
4) We need a much fairer view of trademark law.

The concerns that I am raising involve the individual rights of free speech, self-determination, access to policy makers and the right to use language. As it was pointed out - we represent individual small businesses, entrepreneurs, and individuals. These groups comprise the silent majority of the Internet.

OK, so starting with the principles: the Green Paper sets out 4 principles for the new system.

- Stability
- Competition
- Private coordination and
- Representation.

We agree these principles are critical and offer an excellent starting point, but we ask that one more principle be added. The Internet is the most diverse collection of speech that anyone could have ever imagined. It is academic speech; it is medical discourse; it is personal and community speech; it is political speech; and it is, of course, commercial speech. All of these types of speech are growing and all deserve protection.

We urge adoption of an additional principle that affirms the US case, ACLU vs. Reno. This case overturned the Communications Decency Act, a law which banned indecent language on the Internet. What we need is an affirmation of what the US Supreme Court said: that the Internet "is the most participatory marketplace of mass speech that this country and indeed, the world has ever seen". That is exactly right. It is. And adding one more principle, principle number five, that has the new system protect the openness and freedom of all speech" will protect all of the interests that we collectively represent.

The second issue is representation on the Board. The proposal gives us a body, a corporation, that is tasked with both technical and policy considerations. This is a very broad mandate, but we are told only a narrow group of people will work with these broad issues. We think many more people should be at the table. As we look at some of the comments that have been made by some of the people on the Net, we find that many people agree that many important stakeholders are not at the Directors table.

Jim Dixon, for example, of Euro-ISPA, a group that co-ordinates the activities of the national Internet Service Provider Associations in Europe says "there is a lack of recognition of the fact that ISPs are stakeholders on the Internet." He is right. There is a lack of recognition and ISPs should certainly be at the table.

We have heard expressions of frustrations from different European and Asian groups, who are a little concerned that the only geographic seats are those designated for RIPE and APNIC's technical representatives. We need much more worldwide representation on the Board of Directors and it should be mandated up front.

And then of course, we think that there should be much more representation, not tokenism, but real representation for individuals, small businesses and entrepreneurs, not just one seat, not just one out of 15 votes, but a fair and balanced representation.

Now I am not just here to say we want a seat at the table because it will help us. I genuinely believe that you will get better results if you bring a broader group of Internet stakeholders to the table. I used to think that rugged individualism and self-determination were qualities only of the United States political landscape. (That is why we go to college because we are narrowly exposed to ideas when we are growing up.) When I went to college, I read not only American philosophers but also Europeans, and I think John Stuart Mills says it best. He wrote that each of us is the only safe guardian of our own rights and interests. He also said that "in the absence of its natural defenders, the interests of the excluded are always in danger of being overlooked." This is exactly the mistake that the Policy Oversight Committee made. The POC had a strong sense of paternalism and assured us that they would take care of our interests. The fact is that people should take care of their own interests and they should be at the table. There are far too many question marks about what the technology is, where it is going and what things will look like in the future. Five years ago we couldn't know where we would be today and five years from now, we don't know where we will be. The only way to keep up with the change is to have as many people around the table and as broad a representation as possible. There is another reason why I think we need the widest group of people on the Board of Directors. We should look briefly at technologies that have gone by the wayside in the last few years, and I point to video on demand as one of the examples. A large part of the problem with this technology, I think, was that it was centralized, with centralized control and centralized planning. The planners kept out the very energy and innovation that makes the Internet such an incredibly robust and vital place. It is that energy that we need in the representative system and the Board of Directors now. Individuals, small businesses and entrepreneurs are the lifeblood of the Internet. For example, individuals are your customers, but they are also personal publishers, members of online communities and participants in the political process. They are going to want domain names for all of these purposes and they are going to want websites as well. Similarly, small businesses and entrepreneurs are not just distributors, suppliers and vendors for all of your companies, but they are also your innovators and leaders as well. Business Week and other publications continually write that the experimentation and the energy of the entrepreneurs is what really sets the pace for large companies and shows what can succeed on the Internet. You can not tell these groups that they can be part of the Internet stream of communication and commerce but not part of the governance structure. This new corporation will become the Internet governance structure. We don't want this new corporation from the start to fall victim to allegations of tokenism and paternalism. So, as a start, I throw out the challenge that we need at least the same number of attorneys representing free speech on the Internet as representing intellectual property. Also, we need additional spaces for small businesses, entrepreneurs, ISPs and international members. The Green Paper promises openness of process. Corporations are not open by their general nature. Here we have a corporation that has been set up by the Green Paper and that is being delegated government authority essentially to make public policy decisions. In addition to needing a balanced and diverse group of decision-makers, we need to have a process that involves the Internet community, the people and organizations on the Internet, in helping decide and helping comment on the policies that are being considered by the Corporation. Most corporations I know do not work that way. I see the right words in the Green Paper: I see words that talk about the process being "sound and transparent, fair and open" and the rhetoric sounds right, but the goals are very difficult to achieve in reality. The legitimacy of this corporation and its success will rest on its ability to make people, organizations and corporations feel like they are a part of the comment and input process. We see a huge gap between the rhetoric and the lack of detail and the Domain Name Rights Coalition is going to be watching very closely and work very hard to see that the details of openness are actually implemented in the corporate documents. We hope you will support us in this process. Trademark law. This is the part you have all been waiting for - but I find I don't disagree with Mark [Hellman, prior speaker] as much I did once upon a time. The Green Paper sets out a very broad set of protections for trademark owners. I know it is not as much as you wanted, but I have come to contest nonetheless what you have been given. But before I do that - I have a confession to make. I actually practice trademark law and so does the DNRC President Mikki Barry. That may come as a surprise to some people and I am glad there is no trademark bar because we would probably have been disbarred. Mikki and I register trademarks with the Patent and Trademark Office; we conduct searches of common law marks; and we even send out cease and desist letters. We understand your concern that protecting marks in an expanding world of communication is an incredible challenge. We also feel that a similar challenge must have been faced by all our predecessors with each major expansion of different means of communication - such as when we went from newspapers to radio and from radio to TV and now as we move into satellite and cable. New technology makes our jobs challenging, interesting and incredibly difficult, but it should not change the fundamental rules of fair play and balance that have been built into the trademark law both in the United States and internationally. So let me point out a few places where I think the traditional balance of trademark law has been broken in the Green Paper. One is where the idea of making all applicants certify that they know of no entity with superior rights in the domain name that they seek to register. The second is the idea of coming up with mechanisms to pre-empt marks without regard to whether the marks, famous in some uses, are also basic dictionary words that generic or descriptive in other cases. And, of course, DNRC is concerned about the automatic suspension within 30 days of a domain name registration without any proof of likelihood of confusion or infringement. These three points and some of the general language of the Green Paper wind up equating domain names and trademarks and extend trademark law in cyberspace far beyond its limits in physical space. Maybe these rules are in the short term interests of certain of your clients - but I don't think they are in the long term interests of the Internet. If your clients' interests are genuinely tied to the Internet, then the success of all users of the Internet and the use of the Internet for all forms of speech will lead to the expansion of use of the Internet which will bring more people to your products and services. So talking a little more about the requirements of certification, pre-emption and automatic suspension. Overall, these requirements of the Green Paper will penalize people for using basic ordinary dictionary words on the Internet. You and I know that every major word in the English dictionary is registered as a trademark or service mark at least one time and often many, many more. But these words are also the same words that serve as the building blocks for new corporate names, the titles of our new community organizations, the slogans of our political speeches, the basis of our commercial parodies and the names of our children. Signing an affidavit as an individual that says that you have already looked to see if other people are using this word, is just not realistic for a person setting up a personal website, for a school putting its science fair online or for a candidate registering a political website. These users are not using these words in a commercial context. If you want to require that type of affidavit, as the US Trademark Office does, then put in the limitation that it will only be required of commercial users for commercial purposes, not everybody else. I will point to one example that illustrates both my concern for pre-emption and also about this affidavit. We have a person in the US named Steve Forbes who ran for the US Presidency and may run again. Is Steve Forbes supposed to certify when he wants a domain name for his political site, that he doesn't know of anyone else using the word whom might have superior rights in it? Well, there is the Forbes Magazine and [assuming Forbes Magazine were an independent entity no longer within the Forbes family], should Forbes Magazine be allowed to pre-empt the registration of Steve Forbes' political website? This website will provide the political information that people want to see. Should the Magazine be allowed to prevent the political speech without any showing of likelihood of confusion or confusion? What if the Magazine was really concerned that the political message would be damaging to its commercial interests? Should the pre-emption of the famous "Forbes" commercial mark from all categories of Top Level Domain names be allowed as a way to keep Steve Forbes' political views off the Internet? We really don't want this to happen. This leads me to the issue that gives DNRC the most pause -- the automatic suspension within 30 days of any domain name which is challenged. We think this is going to mean that speech is taken down at critical times and that a political website which is following a bill's mark-up in Congress, or any international proceeding of the United Nations, could be taken down just when it is needed most. CASIE, in Geneva at the last WIPO meeting on Internet Domain Names and Trademarks, raised the concern that the automatic suspension would hurt the launch of new products, services and companies because the domain name could be challenged for anti-competitive reasons and again, without proving anything up front, you could lose the domain name that has just been advertised on commercials nationwide or worldwide. In addition, taking down speech could be dangerous to life itself. After the last major earthquake we had in California, websites were quickly posted on the Internet with the names of people in the California area that was hit: those who were fine and those were hurt. Relatives outside of California were urged to check the web site and not use their telephones. Wire lines were down in California and the wireless phones were already "maxed out" with the emergency calls. If you wanted the information, the best way to get it was on online. What if, perchance, there was an unintended overlap between that emergency website's domain name and any word that has been registered as a trade mark or service mark world wide? Do you really want that emergency website taken down? Automatically? This doesn't really make sense. We predict that the 30 day automatic suspension will also lead to some automatic challenges. I have been told that the American Civil Liberties Union is looking closely at this issue of automatic suspension in light of our tradition in the US against prior restraint of speech. We really don't want this new corporation challenged on the day it is created. I think we should anticipate some of these issues ahead of time. As one method of reconciling this issue of domain names and trademarks - so that you have a quick resolution of a dispute between a trademark owner and a new domain name holder- what I would propose is moving forward with online alternative dispute resolution processes and creating the equivalent of temporary restraining order online. If you can prove that someone is masquerading as your client or someone is intentionally deceiving or riding on your goodwill - then go off and file for an online TRO and get the site taken down. But live up to the responsibility of showing some kind of likelihood of confusion upfront. At this point I am going to turn the mike over to Harold Feld and he will be making some brief comments and an announcement about our follow-up session. My thanks to Prince for organizing this session. Harold Feld I recognize that I am person standing between you all and coffee so I will try to keep it brief. There are a whole host of other rights that are not being mentioned in this debate because they are being lost in some of the initial noise. Rights of privacy, what we call in the jurisdictional area, the traditional notions of fair play, other important rights that pertain to freedom of expression as Kathy has mentioned, some of these are important to consider at this juncture. In fact all of these are important to consider at this juncture. I recognize that the trademark issue is the big and glamorous issue that is attracting a lot of attention in this, in part, because of the land rush for names. In taking a somewhat broader view of this - I am going to ask you all as you are going in here thinking of the solutions to think not just about the trademark problem but about these other concerns. About the questions of consumer privacy, about the questions of click-stream information and whether gathering this sort of information is a violation of consumer rights when you don't tell them, about asking children to get their parents' credit card number so that they can order nifty toys on web-sites. These are issues that have been in the paper. These are issues that people care about. One of the problems of course is that these things really cut both ways. It is important for businesses to be able to gather information on consumers. Consumers like it when you orient sites for them and for their concerns, consumers want you to provide services that want to buy but, and it is always a big but!, there has to be at the same time a pro-active concern about consumer rights and about the fact that there are people who are concerned about their privacy. There are people who are legitimately concerned about these issues. There are people who are legitimately concerned about free speech and the problem is it is very difficult to find out about those rights until you step on people's toes - which is why you have to take a pro-active approach to them. I will now date myself. I remember an Internet before unsolicited email advertisements. I remember two attorneys who did, what was to them the completely logical thing to do, we have a medium where we can advertise for free, why don't we use it and in fact we are even going to develop a product that will let other people advertise for free on this medium. We all know the results. I think of this experiment at first, the attorneys in question sneered at those who protested and said the Internet is growing up - how often have we heard that phrase? It is now going to be a commercial medium and they have to get use to these advertisements. Well, the unsolicited email problem has now, several years later, blossomed into a real problem. There is legislation that is threatened looking at these issues. Consumer Groups are up in arms. You have everything from people who simply don't like opening up their mail to find that they have 20 messages telling them how they can make money quickly to parents who do not want their children opening up their mail and finding that their 13 year old son or daughter can get through to the latest XXX porn site with live porn stars. If we take a responsible approach as we look at these and try to think ahead and not just do what is in our best interests now we can proactively protect these rights and we can keep people from coming after us down the line. Well I just want to mention one other point which is that some people may be disappointed with the fact that the Green Paper did not take as an international a scope as they would have like. In point of fact I was there and others were there on September 30 when there were hearings at Congress and Congress made it clear that they were not going to sit still for seeing the Internet Governance sent offshore. The reality is that world governments care about these things and one of the things they care about is our consumer rights and individual rights and the rights of entrepreneurs, new businesses to come on. As we sit here making these solutions in the shadow of the Capitol Building practically, we need to keep that in mind that the solutions that we come up with, have to be acceptable to world governments. I will make one last pitch for entrepreneurs because that is a very large constituency on the Internet. It is one that we represent and it is an area of rights that needs to be protected and it folds into what I am saying here about being pro-active. Resist the urge in drafting these solutions to do what looks good in the short term interest. It is always in your short term interest to try to keep competitors out of the market, but it is not in your long term interest because it helps keep you on your toes. It keeps the market efficient, it brings more consumers in. When I look at the Green Paper and I see the minimum requirements that are being put in there for registries and registrars I worry about how many people who could bring useful things to the market are being shut out. As we move to a system where the new corporation will potentially set guidelines for business online and for trademark registration, I worry about how many people who are bringing the services that will make the Internet great will be shut out. If you had done a consumer survey ten years ago and asked how many of you want electronic mail - I don't think you would have predicted the Internet would have been a growth market. But somebody had a good idea of trying to market this stuff. Other people had the same idea and now, electronic mail constitutes one of the largest uses of the Internet if not the largest use. I haven't seen the latest poll. We have businesses springing up all over on the Internet, Internet telephony, Internet radio, Internet television -- uses that people even two years ago could not have foreseen. Don't think, as we are deciding on minimum requirements to enter the Internet business, that we can say this is junk - nobody cares about it and if we exclude it, there will not be a problem. This does not mean of course that we can risk the integrity of the Internet by simply allowing everything. On the contrary, we all have too much invested in the Internet house to allow it to collapse because an experiment goes bad. That is part of the problem. So we need to strike a balance. But again I say, as we strike this balance, we need to be careful about what we are shutting out. Every decision about what is absolutely necessary, not merely what is convenient, to construct a stable Internet, we should ask the question: What possibilities that we can't even foresee now are we excluding with this minimum requirement and are we excluding a possibility that for all we know could double the usefulness of the Internet to everyone? We had better be sure that every requirement is absolutely necessary for stable Internet Governance. I have reminded that I should announce we will be having caucus on protecting individual rights and entrepreneurial opportunities on the Internet. Scheduled for after the reception. Thank you very much.