This is just a test message really. In light of recent concerns expressed
by various parties as to whether the list is open to all, I did want to
test my own access. And somehow, I couldn't resist posting a reply to
this message in particular... ...it reminded me so much of my hastily
appended, for-the-occasion signature line below.
I've lurked on this list since its inception, and on the domain policy
list for some years. I am profoundly appreciative of all who take the time
to post to these lists, especially those whom I have observed posting
consistently, even daily, over a period of years. It is an extraordinarily
variegated, colorful, rich and complex display. I approach it as I would
panning for gold, something I occasionally do here in the Rockies.
Certainly I have to sift out a lot of material, but from time to time
there is real gold here; gold - that is, for one hoping to construct a
thoroughgoing analysis of the legal issues facing the Internet community.
Everyone who posts, at least from time to time contributes something which
I file away. Indeed, I will admit - sometimes I miss Jim Fleming...
Harrumph. Back to the subject at hand.
I would preface my comments below by outlining the the following
assumptions:
1) All current forms of point-to-point communication media, e.g., voice,
data, and video, as well as all current forms of broadcast communication,
including the printing press and television, that is, essentially all forms
of human communication over time and distance are succeptible to relatively
cheap and efficient transmission over packet-switched, IP networks.
2) We will increasingly use the Internet to transport our various
communications over time and space, until the bulk of the voice, data, and
multimedia - that is, communication generally, will be transported over the
Internet.
3) This trend will continue until virtually every other form of
communication will converge with, or be substantially altered by the
Internet.
4) Businesses (big and small) will increasingly integrate the Internet,
at once global media and marketplace, into thier existing business
processes, as well as create new ones inspired by the technology itself.
5) As a result the Internet will ultimately dwarf such inventions as
the printing press and television in scope and impact on human history.
Now set aside these assumptions for a moment, and consider the
relationship between the Internet and some forms of "intellectual
property," e.g., copyright, trademark and trade secrets. It is a
peculiarly intimate and codependent sort of relationship, after all, and a
potentially destructive one at that. I can put all my personal property in
a truck, including with it my intellectual property - say the manuscript
for a soon-to-be best seller - and transport it to Canada. However a more
efficient means of transporting my intellectual property would be over the
Internet; indeed, all my intellectual property would travel most
efficiently over the Internet, while none of my tangible personal property
could (at least as yet. ;<))
Indeed, is there anything on the Internet which isn't some form of
intellectual product, potentially subject to intellectual property
protection? It is purely information, isn't it? The internet is, after a
fashion, a purely non-tangible realm of human creativity. Bear in mind,
that is what intellectual property generally represents - human creativity.
Isn't this why the Internet is seen as such a potential threat to
intellectual property: intellectual property is utterly divorced from any
tangible expression. I can instantly, infinitely reproduce exact copies,
without any degradation in quality, and transport them globally nearly
instantaneously. Any copy can take a multitude of forms and still be
transported by the same mechanism, crossing borders and media...The
internet is, I would venture, the greatest mechanism for the distribution
of intellectual property ever devised.
However it dematerializes, or more correctly, de-reifies intellectual
property (reify: "To regard or treat an abstraction or idea as if it had
concrete or material existence.") - and that is a scary thing when it is
your intellectual property which feeds your children.
Now we are creating a body to have global authority over certain limited
administrative, and no doubt, regulatory functions involved with the
internet. These functions involve names and numbers - "identifiers" at
various levels.
Names in particular are sensitive, as they are the map into the human
realm - this is where the rubber meets the road, where commerce is
practiced, where offense can be taken; and where there is most certainly
naked greed and predation, and arbitrary coercion, and doubly certainly,
suffering and injustice. The projection into user space is an
unpredictable, nonlinear mapping. Disputes do arise. They are painful,
sometimes crippling, sometimes devastating. Even when you're in the right,
and especially when you're in the right and being preyed upon by the more
powerful or more cunning.
Certainly we can take such disputes into court. Other, alternative
dispute resolution mechanisms also exist. Sometimes these things work,
other times they do not. There are jurisdictional issues, complexities of
all sorts. The law is a human enterprise, with both heroes and villains,
brilliant sanity and the plentiful ignorance. Especially the latter, btw,
where the net is concerned.
We may, or may not want to grant ICANN the power to hear cases and resolve
disputes. In a way Mr. Sondow's comments at the end of his post point to
the danger of ICANN and the DNSO becoming supranational bureaucracies in
the control of multinational corporations - sort of a giant communications
administrative agency captured by the large multinational companies.
But in any case it is necessary to plan for disputes, and it would seem
that people of good will would want to give ICANN policies and powers which
as much as possible reduce the number of disputes and the impact of these
disputes on the parties involved. We must take into account what we can
expect of human nature, among other things: arbitrary coercion of the weak
by the strong or cunning, as well as the parasitic predations of the small
and frivolous upon the great and creative. We must be forward thinking,
and try to set up something which will approximate justice, as faintly as
our experience allows us to perceive it.
Lawyers have been dealing with these things forever. On all sides. You
may find it hard to believe, but not all lawyers work for big business, or
even for money, for that matter...and some make a terrific career out of
actually seeking thier visions of justice, however faulted. It might make
sense to listen to them from time to time - to confront evil, know evil,
n'est pas? ;<)
And this is what I'm getting to really; I wanted to thank Mr. Sondow for
his amusing comment below that he wants the internet to..
"continue to be used by everyone on an equal and free basis, which won't
happen once the lawyers, whose interest is always with the biggest and
richest businesses, get too big a hold on the process."
Indeed amusing... Well from here I can only refer you to my
signature line below as I have too long already imposed on your kind
attention.
J.M. Inness-Brown, Esq.
"There are some things, apparently, that not even lawyers will tolerate;
and in a naturally unjust world where the image of 'Justice' is honored for
being blind, even a blind pig will find an acorn once in a while."
Hunter S. Thompson
-----Original Message-----
From: Michael Sondow [SMTP:[EMAIL PROTECTED]]
Sent: Sunday, January 03, 1999 8:14 PM
To: IFWP Discussion List
Subject: [ifwp] Re: How not to define membership classes
William X. Walsh a ecrit:
>
> On 04-Jan-99 Michael Sondow wrote:
> > Richard J. Sexton a ecrit:
> >>
> >> At 05:32 PM 1/3/99 -0500, Mikki Barry wrote:
> >> >This argument does not follow. I would argue that intellectual
property
> >> >protection and interests are beyond the scope of ICANN completely.
> >>
> >> Right. We have courts for that.
> > That argument won't stand up. They can argue successfully, I believe,
that
> > prevention of the problem, on the level of domain name registration, is
the
> > only way to solve it because the courts will be too overburdened
otherwise,
> > and because the expense of trying all the cases will be too great.
> >
>
> Overburdened from all the cases?
>
> There have been so FEW cases that I cannot see this as a valid argument
in
> saying that this needs to be addresses at the registration level at all.
The
> simple fact is the domain name disputes are an extremely rare thing and
only
> involve a fraction of a percent of domain names registered.
That's not what the trademark lawyers say, and unfortunately they have the
ear of the courts and of the committees that are concerned with budgeting
the courts. The lawyers say there are already too many cases for the courts
to handle. Who knows what the real truth is?
But the truth, as always, isn't what's important. What's important is the
impression of the truth that the authorities have, and this impression they
get from the lawyers, who have the numbers, expertise, and training to
present their case better than the ISPs, registrars, and users can. That's
why it's so terribly important that the government of the Internet doesn't
duplicate the external government, where business lawyers have the upper
hand.
My remarks against lawyers participating to any great extent in the
formation of the NewCo don't come from an idle distaste for lawyers, but
from a desire to see the Internet continue to be used by everyone on an
equal and free basis, which won't happen once the lawyers, whose interest
is
always with the biggest and richest businesses, get too big a hold on the
process.
Look what they've already accomplished: disintegrating the ICANN into
separate corporations (divide and conquer), which they can manipulate more
easily because, once incorporated, the separate pieces are dependent on the
lawyers at every step; running to a great extent the affairs of the ICANN
(Jones Day, and now Harvard Law School); submitting a proposal (the INTA)
to
turn the DNSO into a corporate state, and using their leverage as a
trademark constituency to get it negotiated by the DNSO. Is this the
"community of the Internet" that was supposed to get together and decide
its
future?
The argument that can win is not the argument that domain name/trademark
cases are insignificant, but that no one has the right to more than one
vote
as a domain name holder. That is, users have just as much power to decide
policy as businesses. Then, since the users are in the majority, and it's
in
the interests of the majority of users to have new gTLDs, there will be new
TLDs. Someone's got to lose out, so it should be the minority of big
business that loses. That's democracy. Otherwise, it's the lawyer's
corporate state, a sort of disguised authoritarianism. Some call it
fascism,
but I wouldn't go that far :)
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