[process2-comments] RFC-1

 Name: Stephen Turnbull Organization: University of Tsukuba Position: Assistant Professor, IPPS I seem to have not succeeded in attaching anything to the form when I sent it before; let's try again. The lack of preparation, consideration, and judgement shown in this RFC is simply astounding. GENERAL PRINCIPLES Enforced transfer: In principle should not be allowed. Use of a domain name may be enjoined under some of the cases below, but its ownership must not be transferred in any case. If the complainant wants to _use_ the domain name, they should buy it at a _mutually_ agreeable price. If the owner should decide to _raise_ their price simply for perversity's sake, too bad---the complainant should have considered that possibility before applying for legal remedies. If it is considered to be in the public interest to enforce the transfer of such a domain name, then the appropriate jurisdiction should exercise eminent domain through the usual condemnation procedures. Domain names are not like trade names: They are more general purpose. They are not the _content_ of a transmission (or not entirely so). Instead, they function more like channel selection in radio or television. Lack of reference to precedents in the domain of broadcast media shows poor preparation and/or a total lack of imagination. Don't encourage racketeering: The WIPO's arbitration body's history shows that it is in great danger of becoming a tool of large corporations, turning a blind eye to legal racketeering. The number of cases filed simply corresponds to the number of would-be claimants who find the ICANN UDRP cheaper than buying the name from the registered owner, and is of no indication of the value of an administrative dispute resolution procedure to the Internet community at large. There is no reason to suppose that many of these cases have not had the perverse result of transferring the domain name to the party with the _lower_ value for the name! That is, the existence of an administrative procedure almost certainly _creates_ the majority of disputes it claims to resolve. There is no particular reason to believe that this procedure is any smoother than the situation without would be; it merely biases the outcome, both in terms of success and cost, toward those who have established trade names. The RFC's unstated premise that there are "existing rights" in (as yet unregistered) domain names is clearly false. True, there is no explicit statement about such rights in the RFC, but the whole enterprise is clearly an attempt to delineate them. Domain names are an artificial construct, and any rights to them will be equally artificial. This RFC is in fact attempting to create such rights, while masquerading as protection of existing rights. In fact, a simple commercial transaction requires almost no expense other than the purchase consideration, and would resolve the issue, either successfully or not, until such time as one party of the other changes its price. But you propose to either require domain name holders to go to great legal expense to protect their assets, or to submit to the corporate racketeers! (Granted, the corporations have an obligation to stockholders to minimize expenses, so I can't blame _them_. But _you_ should be ashamed of encouraging racketeering.) The registration procedure itself may be unfair. But as far as I know all such procedures (trademark, etc.) are "first come, first serve." If it is unfair, fix it. Don't create disputes by making it relatively cheap to acquire assets from others through the dispute resolution process. Cybersquatting: I find cybersquatting distasteful, and certainly despise those who do it. Yet in a few minutes I found well over a dozen unregistered domain names that would clearly identify me personally to any of my acquaintances. Both in principle (according to the argument above about nonexistence of rights in domain names as such), and in practice, I think any attempt to prevent cybersquatting will cause far more trouble than it is worth. It will simply constitute a subsidy to existing trademark-holders. It is noteworthy that there is no restriction against trademarking a personal name, and that trademarks themselves are allocated "first come, first serve". Many real cybersquatting issues (eg, names of municipalities), where there is public interest aside from smooth commercial processes, can easily be solved by local authorities. Simply provide for a standard naming scheme under the ISO 3166 two-letter country code. Japan has already done this. In the U.S., for another example, each state has a two-letter abbreviation. So my hometown would be woodstock.ny.us. True, the Chamber of Commerce would probably like to register "woodstock.com". But who should get it: Woodstock, NY, or Woodstock, VT? I don't see any fair way to decide, yet your dispute resolution procedure would surely create incentives to try to acquire the domain name administratively, i.e., by racketeering. Definitions: Definition of any of "bad faith", "abusive", "misleading", or "unfair" registration and use of domain names _as such_ is doomed to failure. "Bad faith" perhaps; it is possible to define cybersquatting. But in practice it will simply create disputes that would otherwise be resolved by first come, first serve (creating the right to a domain name) followed by highest bidder. If it is considered unfair that the first to apply should get the name, the registration procedure itself should be changed. Eg, a waiting period during which proposed registrations would be published, follow by an auction in case of conflict, could be instituted. But we don't do this with, e.g., trademarks in any jurisdiction as far as I know. The other terms need no definition outside of the libel laws and the commercial codes governing fair trade practices, and if necessary, those should be extended to cover registry of domain names. SPECIFIC DOMAINS OF APPLICATION Personal names: Use the existing libel laws. If any protection is granted to anyone, government officials and persons in the public eye should be specifically excluded from such protection. INNs: I can see an argument for prohibiting _any_ registry of names of the form INN.gTLD, except by the WHO or a similar international intergovernmental organization. If any other sort of registration is going to be permitted, then it should be regulated under some form of fair trade practice law, perhaps by the WTO. International intergovernmental organizations (IIO): There should be a gTLD created for IIO names and abbreviations, and otherwise they should be unregulated. Since it's unlikely that such an enlightened policy would be followed, I think names of IIOs should be registerable only by the IIO. If the IIO in question would like to acquire IIO.org, where IIO is the usual abbreviation of its name, it should go through the usual procedures. If the abbreviated name has already been registered, it should use the usual condemnation procedure of the jurisdiction of the current owner, to acquire the name through eminent domain. The WIPO should encourage nations to look favorably on such petitions, but to award substantial and appropriate compensation to the registered owners. Geographical terms and trade names: I don't like these restrictions in any case (on the 'net or off), beyond the protections given to trademarks. However, to the extent that these terms and names are protected by existing conventions, the procedures of those conventions should be used. If the claim is upheld, the use of the domain name may be enjoined. _In no case_ should registration be transferred to the owner of the protected trade name without the voluntary agreement of the owner of the registered domain. A purchase would do nicely; they have already suffered the loss of use of a potentially valuable asset and should be compensated for that loss. In the case that some kind of "use it or lose it" clause is applied to domain registrations, a specific exception should be made for registered domains whose use has been prevented under the terms of one of these conventions. Again, trying to prevent cybersquatting will simply encourage racketeering; if your trade name or geographical designation is so valuable, you must be making a large enough profit to pay for the domain name you want. If the squatter is in fact trying to harm the owner of the trade name, existing procedures should be available to the trade name owner to obtain relief. Again, it may be appropriate to amend those other procedures so that the domain name might be confiscated by the relevant authority, and perhaps awarded to the plaintiff. But under no circumstances should the domain registrar be involved in such proceedings, except purely technically. -- University of Tsukuba Tennodai 1-1-1 Tsukuba 305-8573 JAPAN Institute of Policy and Planning Sciences Tel/fax: +81 (298) 53-5091 _________________ _________________ _________________ _________________ What are those straight lines for? "XEmacs rules." -- University of Tsukuba Tennodai 1-1-1 Tsukuba 305-8573 JAPAN Institute of Policy and Planning Sciences Tel/fax: +81 (298) 53-5091 _________________ _________________ _________________ _________________ What are those straight lines for? "XEmacs rules."