Re: [IFWP] Re: A Commentary on WIPO's final report on domain names

[Michael Froomkin - U.Miami School of Law]

On Tue, 18 May 1999, Kerry  Miller wrote:

> I am pleased to see your comments here, but I have to object to 
> your final lines. The bracketed deadline suggests that you accept 
> the likelihood that ICANN will take action on this in Bonn, and that 
> therefore public review and comment must try to  fit that window  of 
> opportunity.
> 

That was not my intention.   I do think I retain the right to repost my
notice with a new deadline, later.  Meanwhile, I adhere to Phil Agre's
warnings about having things circulate forever.   I saw several comments
various places that attributed my RFC  3 critique to the Final Report.
Better to be cautious.

> I should say the priorities are just the opposite: ICANN should not 
> take action *until* such public review and comment have been 
> developed. If the public sees no pressing need for adoption of such 
> extra-legal quick fixes,  what mandate does ICANN have to do so? 
> 

IMHO adoption of the WIPO report is properly a matter for a duly elected
board, not an interim board.  But that is a different issue from the four
corners of the recommendations themselves.

[...]
> 
> Beyond that, what do you see as a plausible way out of the 'abusive
> registration'  corner? Would some sort of 'omsbudsman' panel 
> serve the purpose? The WIPO report may be a good faith effort, but 
> if all it amounts to is 'we'll know when we see one,'  it hardly 
> qualifies as intellectual property itself. 

I argued for requiring some sort of frequency as an element of every
allegation of abuse: I thought that part of being a cybersquatter was
doing it a lot.  This did not impress the WIPO staff, it appears.  

As a general matter I am not horrified by having to rely somewhat on the
good faith of truly neutral parties.  I don't think there are many things
in life where one can draw the perfect bright line rule in advance.   The
issue, though, is to give those neutrals about the right instructions, not
just "do what you will".  and a strong statement that free expression is a
value to protect should be one of those instructions.

It follows from the above that it is very important to have arbitral
institutions selected that will pick truly neutral deciders.  And who will
come from **a variety of backgrounds** ie not just trademark lawyers!


-- 
A. Michael Froomkin   |    Professor of Law    |   [EMAIL PROTECTED]
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