Dave and all,
Dave, thank your for forwarding this. Have you by chance sent this to
the ICANN Interim Board for comments?
Dave Farber wrote:
> >
> >Date: Sun, 28 Mar 1999 16:54:00 -0500
> >To: [EMAIL PROTECTED]
> >From: Dave Farber <[EMAIL PROTECTED]>
> >Subject: IP: the joint ACM/ISOC domain names letter
> >
> >
> >
> >>Date: Sun, 28 Mar 1999 10:46:41 -0800
> >>From: Barbara Simons <[EMAIL PROTECTED]>
> >
> >
> >>Dave,
> >>This might be of interest to some of your readers.
> >>I've included the text of the letter below, as well
> >>as an equivalent Word attachment.
> >>Regards,
> >>Barbara
> >>
> >>WIPO Internet Domain Name Process
> >>World Intellectual Property Organization
> >>34 Chemin des Colombettes
> >>P.O. Box 18
> >>1211 Geneva 20
> >>Switzerland
> >>
> >>Re: WIPO�s RFC 3
> >>
> >>To the WIPO Internet Domain Name Process Panel:
> >>
> >>As presidents of the oldest and largest educational and professional computing and
>Internet
> >>societies, we are writing to you regarding the rules for the adjudication of
>disputes of global
> >>top-level domains (gTLDs) proposed in WIPO's Interim Report on the Internet Domain
>Name Process,
> >>RFC-3 (Dec. 23, 1998). We are particularly concerned that the plan may
>negatively impact the
> >>Internet and may harm the civil liberties that create the climate of free inquiry
>and debate in
> >>which science and technology flourish. We are also concerned that these rules
>will inhibit economic
> >>development by discouraging participation in the Internet.
> >>
> >>Our first area of concern is that the proposed policy favors large corporations
>that own trademarks
> >>over small companies and individuals. If an arbitration decision goes against the
>trademark holder,
> >>the holder still has the option of taking the case to court. By contrast, if an
>arbitration
> >>decision goes against the domain name holder, the domain name is quickly revoked,
>even if the domain
> >>name holder chooses to appeal. The right to appeal a decision may not be equally
>meaningful in all
> >>jurisdictions, especially those, which do not have judicial review of arbitrations
>as a matter of
> >>course. Therefore, less wealthy parties often will be unwilling to risk losing
>what will inevitably
> >>appear to be an uncertain case decided by uncertain rules, especially in a
>"loser-pays" system. As
> >>a result, it seems all too possible that the net result of the WIPO proposals will
>be to enable
> >>"reverse domain name hijacking" by large organizations.
> >>
> >>Our second area of concern is the protection of privacy. Efficient management of
>the Internet
> >>requires that a technical contact for a domain name be quickly and easily
>identifiable. The same is
> >>not true of the personal information of an individual domain name registrant.
>These data
> >>historically were collected for operational purposes, but recent serious abuse
>suggests that they
> >>should not be readily available in the aggregate. Given that out of millions of
>existing
> >>registrations there were fewer than 1000 instances in which trademark owners
>invoked the NSI dispute
> >>policy last year, despite the advantages which that policy gives to registered
>trademarks, it
> >>appears that the DN/trademark problem may be surprisingly small. While there is a
>very real problem
> >>of misuse of another's trademarks, this problem needs to be in balance with the
>legitimate privacy
> >>rights and desires of the potentially enormous number of ordinary citizens who may
>register domain
> >>names.
> >>
> >>In addition, a lack of privacy can have significant human rights implications,
>especially in
> >>countries with major human rights abuses. While human rights groups fighting such
>abuses sometimes
> >>can be protected by having their domain name registered by a third party residing
>outside the
> >>country in question, such an option is not always available or may even subject
>the third party to
> >>undue personal risks. Therefore, there must be some provisions for allowing the
>resolution of
> >>trademark claims regarding disputed domain names that are registered anonymously
>or indirectly for
> >>the real holder by a proxy.
> >>
> >>A third concern involves the scope of WIPO's proposals. WIPO should not expand
>the jurisdiction of
> >>the proposed dispute resolution procedure to all types of intellectual property
>disputes related to
> >>domain names. Rather, the focus should be limited to the primary issue: trademark
>claims relating
> >>to misbehavior by cyber-squatters who register domain names identical to marks in
>the hopes of
> >>selling them for a windfall profit. Any ADR proposed by WIPO should be restricted
>to this class of
> >>problem, especially since we have very little experience as to how well
>cyber-arbitration will work
> >>in practice.
> >>
> >>A final concern relates to the ways in which WIPO's proposals might be abused by
>others to chill or
> >>suppress free speech and commercial expression. National public policy draws a
>balance between the
> >>legitimate commercial rights of trademark holders and the freedom of expression of
>citizens. Not
> >>every nation draws the same balance, but as this is sometimes a matter of
>fundamental constitutional
> >>or social policy, it would be inappropriate for WIPO to propose a single worldwide
>standard. In
> >>particular, some nations choose to give very great protection to non-commercial
>expressive activity,
> >>even if it involves criticism of famous people or attacks on famous corporations
>or trademarks. The
> >>Internet has been an important tool in supporting freedom of expression and robust
>debate around the
> >>globe. Registration of domain names is both an expressive activity in itself and
>an important tool
> >>for persons who wish to communicate a message. To the extent that the WIPO
>proposals do not create
> >>safe harbors and protections for all legal personal, political, and commercial
>expression, the
> >>Interim Report is insufficiently attentive to the basic human right of free speech
>and open
> >>communication.
> >>
> >>We support the recommendations made by Willis Ware in his letter dated 3/12/99,
>and strongly urge
> >>WIPO and the Panel of Experts to table the present draft report. We believe that
>a new more narrow
> >>proposal should take into account the recommendations of Professor Michael
>Froomkin (dated 2/24/99,
> >>subsequently updated and posted at http://www.law.miami.edu/~amf dated 3/14/99),
>Professor Milton
> >>Mueller, the Domain Name Rights Coalition, and many others. ACM and the Internet
>Society ask that
> >>this new proposal be circulated by WIPO for another round of public comment from
>the Internet
> >>community followed by another round of revisions prior to being sent to ICANN.
> >>
> >>ACM and the Internet Society would welcome the opportunity to work with you on a
>new proposal that
> >>preserves privacy, free speech, and open communication for personal, political,
>and commercial
> >>expression while providing a fair, equitable, and economically sound policy for
>the resolution of
> >>domain name disputes.
> >>
> >>Sincerely yours,
> >>
> >>Barbara Simons, Ph.D.
> >>ACM President
> >>
> >>Donald M. Heath
> >>President/CEO
> >>Internet Society
> >>
> >
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [EMAIL PROTECTED]
Contact Number: 972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
