Re: [IFWP] feedback on NYT article

[Michael Froomkin - U.Miami School of Law]

Process issues aside, and assuming we can fix the (serious) glitches
(timetable, free expression protection), isn't this proposal better than
the NSI dispute policy.  (I mean just chapter 3, not chapter 4).

On Sat, 29 May 1999, Richard J. Sexton wrote:

> Have we fogotten that it was a consensus item that a unifom ADR is not desirable
> art the Geneva IFWP meeting?
> 
> Didd anybody else notice that nobody ever asked the question this time round
> "is a uniform ADR desirable" ????
> 
> 
> At 10:32 AM 5/29/99 -0400, Esther Dyson wrote:
> >Jeri -
> >
> >In our conversation on Thursday, I said  to you that we had endorsed many of
> >the "principles" of the WIPO report, most notably uniform dispute
> >resolution, but not the specific recomemendations. 
> >
> > I  suggested that you consult the press release and resolutions for
> >details, which include  separate approaches to three separate
> >categories/sections of the report (and which you to some extent outline
> >later in the story). We did, as many public comments had advised us to,
> >refer the second two categories (as opposed to approaches we had de facto
> >already adopted in our registrar accreditation guidelines) to the DNSO. In
> >other words, though the second paragraph of the story and subsequent details
> >were better, the lede was seriously misleading.  What more can I say?  
> >
> >Unfortunately, these seemingly  subtle distinctions are important.  (For
> >everyone: The details are at
> >http://www.icann.org/berlin/berlin-resolutions.html and
> >http://www.icann.org/berlin/berlin-details.html.)
> >
> >
> >Esther
> >
> >                                                                   
> >                                                                   
> >
> >
> >          May 28, 1999
> >
> >
> >          Internet Board Backs Rules to Limit
> >          Cybersquatters
> >
> >          By JERI CLAUSING 
> >
> >               he board of the Internet's new oversight organization on Thursday
> >               endorsed a controversial set of recommendations for cracking
> >          down on so-called cybersquatters, who register trademarks and other
> >          popular words as Internet addresses. 
> >
> >          Esther Dyson, interim chairman of the organization, the Internet
> >          Corporation for Assigned Names and Numbers, emphasized that the
> >          board's endorsement merely affirmed the broader principles of the
> >          recommendations, which were issued last month by the World
> >          Intellectual Property Organization (WIPO), an arm of the United
> >          Nations. Many of the details, she said, would be open to amendment. 
> >
> >          The board deferred final adoption of the
> >          recommendations until they can be reviewed by
> >          one of ICANN's newly formed member groups.
> >          Absent from that group, however, is the
> >          constituency that critics say have the most to lose
> >          under the recommendations: individuals and
> >          non-commercial interests who have already
> >          registered Internet addresses and could have them
> >          taken away. 
> >
> >          Like everything surrounding the Clinton
> >          Administration's process for handing administration
> >          of the Internet to ICANN, the board's action was
> >          immediately criticized as contrary to its charge to
> >          be a "bottom's up" organization and follow the lead
> >          of its worldwide constituents. 
> >
> >          Brian O'Shaughnessy, a spokesman for Network Solutions Inc., which
> >          has held an exclusive government contract for registering names in the
> >          top-level domains of .com, .net and org since 1993, said after
> >Thursday's
> >          action that ICANN was envisioned "as a limited standard-setting body
> >          which is consensus based." But he said that when the board begins
> >          making such decisions, "It's top down instead of bottoms up." 
> >
> >          A. Michael Froomkin, a University of Miami law professor who advised
> >          WIPO on the recommendations and who has been critical of some of its
> >          major provisions, said he was pleased that the ICANN endorsement
> >          applied only to the broader dispute resolution principles. Three other
> >          chapters, including that recommending that ICANN establish a system
> >          for protecting not only trademarks but other famous words, was
> >referred
> >          to the membership committee without recommendation. 
> >
> >          Still, he questioned the need for the board to take any action yet. 
> >
> >          "Why are they endorsing things before they send them to the supporting
> >          organization for review? " he asked. 
> >
> >          The unanimous endorsement of the principles by ICANN's board came
> >          during an eight-hour closed board meeting in Berlin, where the board
> >          also finalized a $5.9 million budget that will be financed in part
> >by a $1 a
> >          year fee on every domain name registered and on fees and dues from
> >          companies ICANN approves to begin competing with Network
> >          Solutions. 
> >
> >          In addition, the board approved the structure of two of three
> >supporting
> >          groups that will make up the nonprofit corporation's membership. 
> >
> >          One of those three is the Domain Name Supporting Organization
> >          (DNSO), which has been charged with making recommendations to
> >          ICANN on how and when to add new top-level domains like .com to
> >          the global network. 
> >
> >          Its first order of business, however, is to carry out rules
> >governing the
> >          registration of domain names. Specifically, ICANN asked the new group
> >          to begin drafting a plan on how to move forward with the WIPO
> >          recommendations. 
> >
> >          "It's clear that this is urgent so we sent that right to the DNSO
> >saying that
> >          we basically support the WIPO report but there are issues about how to
> >          implement it," Dyson said. 
> >
> >          The WIPO proposal has been criticized as favoring trademark holders
> >          and wealthy corporate interests over small businesses, nonprofit
> >groups
> >          and individual Internet users. 
> >
> >          Although the board action is an official endorsement of the WIPO
> >          principals, Dyson said the recommendations are still "very much" open
> >          for change by the domain name supporting organization. 
> >
> >          But that group is still lacking one of its seven constituencies:
> >the group
> >          that is supposed to represent individual and non-commercial domain
> >          name holders. The other six constituencies - representing groups like
> >          trademark holders, registries and Internet service providers - were
> >          approved by the board Thursday. 
> >
> >          "These guys are stragglers," Dyson said. "They basically did not come
> >          together with a proposal. We hope to have that resolved in June. We
> >          told them to come back to us." 
> >
> >          Despite the missing link, Dyson said the DNSO has been asked to begin
> >          work immediately on the WIPO report so that the board can adopt some
> >          of its provisions at its next board meeting in Santiago, Chile, in
> >August. 
> >
> >                                     ICANN on Thursday also accepted
> >                                     an application for the Protocol
> >                                     Supporting Organization, which will
> >                                     deal with more technical aspects of
> >                                     the Internet's architecture. It expects
> >                                     to formally recognize a third group,
> >                                     the Address Supporting Organization
> >                                     in Santiago. 
> >
> >          Thursday's board meeting - the third formal meeting of the interim
> >          ICANN board -- followed a daylong public hearing where the board
> >          took comment on all of the items on its closed meeting agenda. It also
> >          discussed the progress, or lack thereof, in opening the domain name
> >          registration business to competition. 
> >
> >          ICANN was formed last year to take over the administrative
> >functions of
> >          the Internet that previously were conducted by government contractors
> >          and to open the registration process to competition. Last month it
> >chose
> >          the first five companies to test a shared registration system built by
> >          Network Solutions. 
> >
> >          The test phase officially began April 26, but none of the five
> >companies
> >          has yet been able to go live and begin registering names in the
> >top-level
> >          domains of .com, .net and org. 
> >
> >          Ken Stubbs, who represents the only nonprofit entity participating
> >in the
> >          test, the Internet Council of Registrars, complained to the board that
> >          important software from Network Solutions does not work, and that the
> >          non-disclosure agreement Network Solutions made the test participants
> >          sign prohibits them from discussing the test problems with ICANN. 
> >
> >          Dyson said she was disturbed by Stubbs comments. 
> >
> >          "My goal had been for the test to be a source of information not
> >just for
> >          the people directly involved in the test but for everyone who
> >wants to be
> >          a registrar down the road," she said. 
> >
> >          O'Shaughnessy said the non-disclosure agreement was a standard
> >          contract meant to protect the company's proprietary information. 
> >
> >          "There is nothing particularly unique about it," he said. "They
> >are holding
> >          it up as if it's restrictive, but it's a standard NDA. 
> >
> >          The reason the test information has not yet been shared with ICANN is
> >          simple, O'Shaughnessy said: "ICANN hasn't signed the non-disclosure
> >          agreement." 
> >
> >
> >Esther Dyson                 Always make new mistakes!
> >chairman, EDventure Holdings
> >interim chairman, Internet Corp. for Assigned Names & Numbers
> >[EMAIL PROTECTED]
> >1 (212) 924-8800
> >1 (212) 924-0240 fax
> >104 Fifth Avenue (between 15th and 16th Streets; 20th floor)
> >New York, NY 10011 USA
> >http://www.edventure.com                    http://www.icann.org
> >
> >High-Tech Forum in Europe:  24 to 26 October 1999, Budapest
> >PC Forum: March 12 to 15, 2000, Scottsdale (Phoenix), Arizona 
> >Book:  "Release 2.0: A design for living in the digital age" 
> >
> >
> >
> --
> [EMAIL PROTECTED]    [EMAIL PROTECTED]
> Remember, amateurs built the Ark. Professionals built the Titanic.
> 
> 

-- 
A. Michael Froomkin   |    Professor of Law    |   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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