ICANN vs. ICANNWatch: An Interview with Opponents in the Domain Space Playoffs
When the Internet Corporation for Assigned Names and Numbers (ICANN) was created in November 1998, the fledgling organization had little idea that its decisions would carry so much weight and create the broadside of contention that has dominated the domain name headlines in the past months.
Now the object of criticism for public interest groups and concerned Web users worldwide, ICANN is treading carefully. Common Cause and the Center for Democracy and Technology, for example, exposed the organization's election procedures in a report, calling ICANN "undemocratic" and driving ICANN to change its policies.
And ICANNWatch, a watchdog group of three Internet law-savvy activists, monitors ICANN's actions vigilantly. ICANNWatch believes "nothing is of greater importance to the future of the global resource that is the Internet than the way in which ICANN performs its role as manager of the domain name system."
The group has devoted its energy to an informational Web site, which "serves as a place where people can see the other side of the story." As ICANNWatch puts it, the site is "a kind of hill overlooking the often chaotic information landscape from which anyone seeking a better understanding ... can survey the ever-changing terrain."
Truly, the rules and regulations are changing so rapidly that trying to keep the facts straight becomes a confusing and difficult undertaking. So journalist Crystal Dreisbach asked to talk to the big contenders in the domain game directly.
An ICANN spokesperson (who asked not to be identified) and David Farber (who is one of the three ICANNWatch founders, telecommunications professor at the University of Pennsylvania, and chief technologist at the Federal Communications Commission) were both asked to explain exactly what ICANN is doing and how it's dealing with its controversial policy making, and also to add what they each see in the future of the domain name space.
Interestingly, many of their responses are drastically different. ICANN, for example, claims that the organization is responsible only for the "technical management of domain names, IP addresses, and Internet protocol," but ICANNWatch says that ICANN's decisions, "while originally restricted to those dealing with the management the domain name space, go far beyond that."
And while ICANN reports that its board is successfully coming to conclusions about how the new top-level domain names will be introduced and is setting guidelines for the upcoming at-large board member election, ICANNWatch divulges that ICANN's "big headache and controversy right now is the very touchy question of trademarks and domain names." ICANN has to figure out what to do about that, says ICANNWatch, because the issue, which involves intellectual property rights and trademark ownership, is "quicksand."
ICANN's other major task, ICANNWatch says, is to deal with .com value issues and the new top-level domain names, in which "big companies with their powerful commercial interests are playing their usual mean games."
So here's the interview. Read what each side has to say, and judge for yourself.
Q: Will new top-level domain names be available on a first come, first served basis? Won't problems come as a result of that?
ICANN: That's still an issue to be discussed. ICANN has already had a lot of problems with first come, first served policy in the original three top-level domains.
Basically, before we release the new domains, we have to figure out how to make sure it's not a giant land rush, where everybody runs out and gets their .com domain names in the new domains. That wouldn't help anything anyway. We're just not sure how to prevent that yet.
ICANNWatch: It will be a nightmare. The headache all starts when people try to interpret what they believe is trademark law into the Internet space. In the trademark world, if I have a hardware store called Ford, the Ford Motor Co. can't touch me. But when you go into the Internet world, Ford Motor Co. will complain that Ford Hardware violated its trademark if [ Ford Motor Co.] had the name first.
The worst part of it all is that all this is not a good thing for small businesses. Small companies are going to get beaten up endlessly by big companies, because the big companies will claim rights to the names the little guys register under the new top-level domains -- even if the little guys register them first.
Q: How will ICANN resolve trademark disputes that will arise from the new top-level domain names?
ICANN: The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a three-part test. First, the name has to be trademarked or copyrighted in some way, somewhere. Secondly, the person who has used the name has to have no legal rights to the name. And three, the person who has used the name has to have acted in "bad faith" in some way.
So it's pretty tailored, and it all works online. There are currently three providers of arbitration services. The complainant pays the cost of the arbitration provider [ and] files a complaint with all the specifics and details, the person who holds the domain name can respond, and then the arbitrator will make a decision. If the person who holds the name doesn't like the decision, they have 10 days to file a lawsuit. But if they don't choose to, then the name has to be transferred. So it's mandatory arbitration, but it's not binding.
ICANNWatch: The classic example I like to use is mcdonalds.com. If I register the name and my name is not McDonald, I might send a letter to McDonald's and say, "Give me free Big Macs, and I'll hand over your domain name." Then McDonald's could file a suit under the UDRP.
However, if I register mcdonalds.com and my last name is McDonald and I have a farm, have been using the Web site for years to sell my farm products to the public, and I've never contacted McDonald's the hamburger chain, then McDonald's, the hamburger joint, wouldn't have a case against me.
Q: Let's say that the new top-level domain names are approved, and one of them is .store, for example. What happens if one business registers the same name under .store as an already established .com business?
ICANN: We don't know. The rules under the UDRP deal with names that are the same or confusingly similar, but only in the .com, .org, or .net domains. So that's one of the things that still needs to be worked out.
ICANNWatch: Big problems related to that will be coming. In the domain space right now, there are very few top-level domains, so there's room for only one McDonald's, for example. But if you had a mcdonalds.hardware and mcdonalds.car, for instance, nobody in their sane mind could say that McDonald's the hamburger chain could legitimately claim rights across both of those. Where do the name trademark boundaries end?
We'll just have to see what ICANN comes up with to handle those kinds of disputes.
Q: I think a big fear that small businesses have is that after they register a name, they'll have to defend it against big companies that claim to have rights to it. What will the dispute policy do for them?
ICANN: If you're looking at this from a small-business perspective, the dispute policy makes everything cheaper and faster, and there's no need for the small business to go to court.
And the problem of "reverse domain name hijacking," where a big company comes after a little company, doesn't really happen. Our dispute policy prevents that. People now have this rule that says the complainant has to show they have a legitimate trademark and have also witnessed a bad-faith use of their name [ by a hijacker] .
For example, a small company called Clue Consulting had a Web site called clue.com. Hasbro [ which makes a game called Clue] tried to get [ the] name back. But the courts said no, as they had been using the name for their business, and Hasbro therefore did not have a right to the name. In this case, the small company got to keep its name.
ICANNWatch: Small businesses will get beat up instantly if they try to fight against the big companies over domain names. The big company will write them a letter saying that they have violated their trademark, and whether they did or didn't, it's a matter of the court system. The small-business person can't really fight back; they'll have to pay for their name's defense. With big businesses, it's no problem; they have great lawyers, so they just pay. For the small companies and individuals, it's not such an easy task.
And right now, arbitration mechanisms won't necessarily work well because they're set up in such a way that leaves them open to conflicts of interest, perhaps in the big businesses' favor. What happens is that arbitration organizations are chosen by the complainant. That implies that if the arbitration organization rules against the person or company too often, that person or company will choose a different arbitration organization the next time. So no matter how honest an arbitration organization is, you have real problems unless it's a fair and random selection.
Q: Would you recommend that small businesses register their names as trademarks to prevent any problems that might come up?
ICANN: I couldn't really speak to that. But, for example, clue.com was not a registered trademark, but [ the small business that was using clue.com] had not used the name in bad faith, so they got to keep it.
So if you look at it that way, if businesses would just use the names they register for legitimate purposes, they won't have to really deal with the big companies coming after their names.
ICANNWatch: You can trademark your name, but even when you do that, you'll have problems. That's because trademark law is very local. What you trademark in one state [ isn't] necessarily [ considered to be] trademarked in the other states in which you do business. So big businesses will come after you anyway.
Q: Should people preregister in possible new top-level domain names before the names are approved by ICANN?
ICANN: There were some proposals at the last ICANN board meeting in Cairo about which names to register, but no resolutions were made. The only thing that was decided is that there should be new top-level domain names, and maybe 6 to 10 of them would be a good number. There was a general consensus about it, but that's all.
I know there are some services offering preregistration of .web and other domains, but because there has been no decisions at all about what new top-level domain names will come out, preregistration is probably too premature right now.
ICANNWatch: They should first read the cybersquatting law and decide whether or not the preregistration is in violation. But it is difficult to determine that. I mean, what if you register a name that you fully intend to use in the future, and someone complains that you're trying to hijack the name or sit on it so that you can sell it later?
These cybersquatting laws have gone wild; they've just gone too far. Right now, the law seems to say that if someone sends you a letter [ asking] you to give up your domain name, and you say, "OK, at least reimburse me the $35 I spent to register it," they could interpret it as holding the name for ransom, which would then be considered cybersquatting. And you'd be breaking the law. On the other side, there really are people who register names and sit on them to wait for money.
So as far as a recommendation, I would say go ahead and preregister, but leave paper trails that show that you have intent to use the name for a business. That way, you can prove you're not cybersquatting and won't get in trouble later.
Q: ICANN's going to have this global election soon to elect board members from the general public. It seems there are now enough at-large members to hold the election. How will the election work?
ICANN: We only have about 12,000 members right now, but [ that's] definitely enough to have the election. Now it's just time to get the structure set up, so there will be a nominating committee [ and] guidelines about how to become a nominee and what to do if you're not chosen by the nomination committee. In that case, you could still get enough names on a petition to get on the ballot.
And actually, the election structure was changed slightly at the March 2000 ICANN meeting in Cairo, due to some concerns by some different groups that felt the original process wasn't democratic enough. There was going to be an at-large council. Now there's going to be a nominating committee with a direct election. We're going to start off with five seats, one from each geographic region. That will take place in order to get those five people seated by the annual meeting this November.
The terms of the current board members were supposed to be up by September 30, but they've been extended now until the annual November meeting. Four of the initial board members will remain, but it hasn't been decided yet which ones. Some people were concerned that half of the board would be leaving at one time, which would be tough for the organization, especially since all of the experience and expertise of the people who have been doing this for a while would all leave at the same time.
ICANNWatch: That election will be a difficult problem. There's no nice way to do it, especially since [ there are] no natural constituencies. There's no clear way of knowing who the constituents are - that is, the Internet users - or how many people know or care about the issues.
And what about all the people who don't read English? My guess is that ICANN has disenfranchised a bunch of people from the election who don't know English.
Basically, with ICANN, we're talking about governance without representation, which is a dangerous game. Many other countries disagree that a fundamentally U.S. organization should have the governance over the domain space.
Any way you look at it, this election will be a riot. But I don't have any better solution for the problem. Maybe if you assume, for instance, that the majority of governments in the world do represent their people, then maybe ICANN needs to pick a legislature from every country and let them make up the ICANN board.
Q: What do you think the global election is going to change? How will it affect the way the domain name space is regulated?
ICANN: The biggest change is just that there will be more voices and more input. Right now, the people who have been participating in ICANN's policy making are the same old group of people, and they have their own specific agendas. Having more individual users participating can only be a good thing. It's the end users who will be affected by the decisions [ and] will have a better way to make their comments known and participate.
Today, the Internet is pretty American, for good or bad, but there are a lot of people out there who use the Internet who aren't American. So, we expect that the election will increase the globalization of the whole ICANN effort, getting more global input into the decision making. Getting the world up to speed, educated on the issues, and involved can only be good for the whole process.
ICANNWatch: It's going to create endless chaos, and I don't think it's going to change much for the better. The biggest question is, Who the hell can vote?
And the election itself is going to get crazy. If ICANN announces to the registered at-large members that the election will take place at such and such time, they need to expect there will be tons more people registering to be members right away.
And how do you tell if the people who register to be voting members are real people? I mean, to be an at-large voting member of ICANN, you just sign up using your e-mail address. But most people have a few different e-mail addresses, so will they get to vote more than once?
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