Mr. Schwimmer Writes: >Write a post asking for working together to harmonize and they say "drop dead." If you read this as the intent of my post, you seriously misunderstood. As you should know from reading what I have written over the last several months, I have never adopted such an attitude. My position has always been simple: where should the primary burden of protecting trademark interests lie? Answer: The primary burden for policing and enforcement must lie with TM holders, as it always has. This is the way it has always been in the world. Another central point, which is crucial to understanding my next statement, is that market pressure and technological limitations, rather than protection of existing stakeholder interests, should drive the development of technology. The DNS evolved in a particular way for technical reasons. In the absence of TM concern for policing, there is no reason to restrict the advent of new TLDs. similarly, in the absence of concern over policing, there is no reason to impose new restrictions on registries. If other reasons emerge, either market pressure (there is no market for new TLDs) or technical reasons (there is a ceiling to the number of TLDs that can be added), then they impose natural limits. Mr. Schwimmer continues: >If I said victims of reverse DN hijacking that DN owners should accommodate >themselves to >the way things are, Mr. Feld would respond how? Reverse hijacking is an artifact of NSI's attempt to protect itself from lawsuits. It is neither a technical limitation nor a market limitation. If new, competing TLDs could be created, with different policies, NSI's policy could be viewed as a market choice by NSI, and I would defend their right to make that choice (and encourage folks to migrate to different registries). As it stands, however, consumers have no choice. The NSI policy that permits reverse hijacking, like the proposed WIPO policies that would encourage even more rampant reverse hijacking problems, are barriers to a technology and market driven DNS that should be removed. (By the same token, I am also in favor of removing NSI's obscenity policy and similar content restrictions). My argument is not an appeal to tradition (except in so far as it incorporates traditional notions of trademark law) or to the sacredness of DNS as constructed now. My argument is that we have a fundamental disagreement over what concerns should drive development DNS in the future. Should it be constructed to facilitate policy choices, or simply allowed to respond to market demand and technical need. By analogy, I offer the FCC's "public benefit" model for broadcast. In developing rules for radio and television, the FCC was charged with performing a public interest analysis and placing emphasis on preserving local markets. This had a profound impact on the development of the technology and the business model for broadcast. Mr. Schwimmer: >If there were several thousand instances in three years of TM owners complaining to >>phone companies regarding trademark conflicts as to how 1-800 numbers were allocated >the situations would be analogous. Correct me if I am wrong, but it appears to me that your sole argument for treating DNS issues differently from the rest of the trademark world is scalibility. I.E., because DNS presents an opportunity for infringement on a grand scale, something must be built into DNS to compensate for this. Mr. Schwimmer >The collision with the pre-existing body of rights known as trademark rights is >an externality of the business of selling domain names. At first glance, this would appear to mean that all trademark disputes involving domain names derive from cyberpiracy. Surely you do not mean that. The collision with the pre-existing body of rights known as trademark law comes from a variety of issues peculiar to the nature of the Internet (its global nature, its blurring of channels to the consumer, its facilitation of convergence of business out of the traditional categories) *and* DNS (the requirement that all names be unique). >From your previous emphasis on cyberpiracy, it is possible that you mean that the accommodation DNS should make pertain solely to the issue of cyberpiracy. In that case, I would question whether it is worth it to bend DNS out of shape for a matter which is rapidly becoming settled law. Mr. Schwimmer: >The DNS can take responsibility for this externality and work to minimize the >externality - or they are, to put the best face on it, bad citizens. The DNS is not a person, anymore than "the Trademark owners" are a person. Less so, in fact. "The DNS" is an inanimate collection of technology and protocols built over time to facilitate internetworking. It has a number of features that, at this point, relate to the purely technical function of moving packets from one IP address to another. The question becomes, what restrictions do we put on the development of this tool to facilitate what interests? What policies do we force those using the tool to follow to facilitate certain policies. Frankly, blaming "the DNS" for the problem of policing trademarks is like blaming paper and ink for copyright violations. Mr. Schwimmer >TM owners are not interested in rigging the DNSO to gain some type of majority >(einar's hypo aside). They are in this debate because of the f*** you tone of Mr. >Feld's >post. (If my expurgated term offends, I apologize - but it is the essence of Mr. >Feld's >message). Certain trade organizations and Intellectual property lawyers are here to advocate for certain policies that will (A) help their clients, (B) make their lives easier, and (C) believe that this serves the public good. Other (myself included) oppose this because we (A) believe these changes hurt our clients (whom I stress at this point are *not* cyberpirates - so please do not raise that strawman in any response), (B) believe it will make our lives more difficult, and (C) believe that the proposed policies do not serve the public interest. This is a legitimate difference in views that occurs all the time before administrative agencies, legislatures, and courts of law. I fail to see why you resort to profanity simply because it is a position taken on a public list. You think the universe (and your clients) are better served if policies are implemented to curb what you believe are bad behaviors and to facilitate positive behaviors. I think the universe (and my clients) are better served by not implementing these policies. I appeal to traditional rules of trademark law, you respond that such rules were never conceived for this medium and that new policies must therefore be imposed. I respond that the nature of the medium is not that new (all new technological advances have some dislocating effect) and that the dimensions of the problem are exaggerated. Etc. We attempt to convince each other and the rest of the playing universe of the rightness of our respective views. On a practical level, we each evaluate what are core do/die issues, what are peripheral, where points of agreement can be reached, and how to implement a mutually satisfactory solution (if possible). I am, in fact, rather surprised at both the venom and vehemence of Mr. Schwimmer's response. You are a seasoned professional, justly regarded as knowledgeable in the field, doing sophisticated work for clients with particular, well defined interests. Why you feel the need not merely to disagree with (what seems to me, at least) an equally valid philosophical position, which serves as a starting point for policy analysis, but to use profanity and throw up your hands in disgust, is beyond me. It is precisely this sort of hardening of positions and disparagement of opposing views that has made it almost impossible to get constructive work done on these lists. None of the other professional lists to which I subscribe even come close to the level of heat displayed here, even on highly controversial do/die issues. When even seasoned professionals cannot remain civil, something is seriously awry. I wrote: >>As an aside, I will add that TM law seems to be adjusting fine, with no need >>for any radical adjustments on anyone's part. To which Mr. Schwimmer responded: >which conclusion can only be reached by ignoring the totality of the TM/DN conflict >over >the last few years. On the contrary. Look to the trends as they are merging in the current law, and the statistics recently reported by Chuck Gomes on this list. Regarding law, I note the following: 1) Courts in all reported cases have had no problem finding infringement in cases where companies have used names in a genuinely deceptive manner. 1a) Obviously, dissatisfied plaintiffs will disagree regarding what should or should not constitute infringement, but this is no different from disappointed plaintiffs outside the Internet. This is why we have courts, to judge on specific facts whether a particular use infringes. 2) Courts in all reported cases have found that "cybersquatting" in the sense of obtaining a laundry-list of famous names, is infringement. Outside the law, technical solutions and services are emerging to (a) facilitate enforcement by TM holders, and (b) alleviate consumer confusion. Furthermore, as the figures quoted by Chuck Gomes show, the rate at which the NSI policy is revoked is decreasing. Finally, I note that e-commerce generated more than $8 billion in revenues, and is expected to continue growing at an exponential rate. Looking beyond the narrow universe of TM concerns to the broader universe of e-commerce, the problems identified by TM holders are not causing much of a ripple. (We would do well to remember that businesses that go online are not here to horde trademarks, they are here to make money. TM protection is merely a tool to that end. As I have argued in the past (and continue to argue) I believe that policies that place unnecessary burdens on DN registrants will ultimately have negative consequences for ecommerce generally and the businesses that have pushed for these policies. Consider the telephony market as an example of this. The money AT&T can make in today's enriched telephony market is probably more than it could have made as a monopoly provider, in addition to all the other wealth generated in the world as a result of divestiture.) There are, of course, areas of law that remain in contention and that have not yet settled. For example, we still have no good law regarding "oops sites" (sites that rely on the misspelling of famous word). Courts, however, are working these problems out. Given that ecommerce has only been around in earnest for a few years, it is not surprising that the law is taking some time to work the kinks out. The question (and it is certainly subject to reasoned debate) is whether the time it will take the legal processes to resolve these issues, and whether the answers the legal processes will ultimately develop, impose costs so high that we must preemptively decide these issues by imposing restrictions on the DNS. Mr. Schwimmer concludes: >Note the contradictory tone - there is no problem - accommodate yourself to the >problem. You have misunderstood me. Allow me to state the proposition more plainly. a) As a philosophic matter, I believe that development of the DNS should be driven purely by market forces and technological restraints. I find global policies enforced on unwilling market participants that are designed to "enhance commerce" or protect intellectual property as abhorrent as policies designed to facilitate national content, support localism, bar content deemed harmful, etc. (all of these are policy goals advanced by other regulatory bodies, why should these policy goals be slighted?) b) As a practical matter, the DNS currently exists in a particular form. This form presents opportunity for good behavior (ecommerce, public expression) and bad behavior (infringement, consumer fraud). c) Again as a practical matter, you and your clients face problems with specific bad actors who exploit the potential of the DNS for what you perceive as bad ends. d) Back to philosophy, the question becomes how to deal with specific bad actors. e) Your proposal is that the mechanism that permits these bad actors to perform their bad acts should be modified to reduce the potential for bad acts. This is justified, if I understand you correctly, because the sheer scale of the problem makes any other solution impractical, because doing so will also facilitate the potential for good behavior, (notably ecommerce), because other good behaviors will not be infringed to a significant degree, and because the mechanism that facilitates bad acts somehow bears responsibility for the bad acts. f) I, on the other hand, believe that no modification of the basic mechanism is necessary, as other mechanisms exist that are less burdensome to the population as a whole. Rather, it is appropriate to place the burden on the party most affected, as is traditional in our system of law. The scale in question, while presenting challenges, does not make traditional mechanisms impossible. Furthermore, the suggested modifications would have significant consequences for good actors and discourage good actions. In addition, the proposed solution sets a bad precedent by acting against an inanimate system and imposing burdens on good actors thereby rather than solely punishing bad actors. Finally, I argue that society is better served by preserving the maximum freedom of action and freedom for the marketplace. g) You have also made the argument that burden on existing stakeholders is sufficiently severe to warrant immediate and dramatic relief. I disagree as both a factual matter and a policy matter. I argue that your solution creates a potential for bad behavior in the form of reverse hijacking. You disagree. Thus, to address the quoted statement, there is no contradiction in message. Individual people will have problems no matter what happens, just as individuals have problems regarding trademarks outside the Internet. I am sympathetic that your clients feel they are injured under the existing system, but I feel the relief they want is too high a price. This does not preclude reaching a practical compromise. Such compromises are reached every day, despite divergent worldviews. There is no need for you to win the philosophical war to negotiate a settlement, anymore than there is need for one party or another to admit guilt in a judicial settlement. Harold
