Re: Fwd: [IFWP] Press =?iso-8859-1?Q?Communiqu=E9?=

[Michael Froomkin - U.Miami School of Law]

One enormous danger of this expand-WIPO-arbitration strategy endorsed in
the ICANN Press communique is that there will not be judicial review in
the US (and a few other countries), while there will be in much of the
rest of the world. The result will be to put US registrants (and others
similarly affected) at a vast disadvantage to the rest of the world.

I explained this at some length in my critique of RFC 3.  The problem
still exists with the scaled-down final report, but I think it can be
swallowed in the interest of compromise since the cases are presumably
going to be about real abuse and the potential for injustice is thus much
reduced.  Go to cases where reasonable people can disagree, and it's
unacceptably unfair to tell people they have to waive their right to go to
court when others do not. I have yet to see WIPO, ICANN, or anyone else
address this issue (and if you are thinking of making arbitration
mandatory and binding, which solves the equity problem, try selling that
to either the trademark people or the people who think freedom of
expression should not be entrusted to arbitrators). To endorse the idea of
wider arbitration, even in principle (if that is the term for doing it in
a press release that undercuts the supposedly formal resolution), without
addressing this fundamental issue is very troubling.

I'd also like help understanding how a generic policy on commercial
disputes falls under the jurisdiction of a body that (I thought) was
limited to technical issues regarding names and numbers.  In addressing
this issue, I'd especially like help in understanding how this "technical"
jurisdiction will not then be extended to the content of web pages, e.g.
copyright or offensive content, especially since in the usual dispute
regarding a trademark and a domain name, the law makes the content of the
web pages at that DN an essential part of the issue: non-cybersquatting
trademark cases usually turn on whether the use of the term causes
consumer confusion.   This is not an attempt to use some Internet scare
tactic.  It is a sincere and honest question to which I do not currently
see an answer.

As a lawyer I see all the signs of a slippery slope here.  And please
don't tell me that I should put my faith in the Board.  I retain a great
personal respect for the Board members I know personally.  But this is not
about faith in individuals, this is about creating an institution and its
legal powers; we always have to assume the worst when doing any legal
drafting, and that's doubly true when designing institutions that may last
generations.  

Critique of WIPO RFC 3:  
http://personal.law.miami.edu/~amf/critique.htm

Commentary on WIPO Final Report:
http://personal.law.miami.edu/~amf/commentary.htm

On Mon, 7 Jun 1999, Esther Dyson wrote:

> My server has been rejecting mail lately (a Freudian slip perhaps!), so I
> missed this till now.  
> 
> Basically,  the sense of the board is that this policy, whatever it
> eventually involves, should probably address all (nonpolitical)  disputes
> over names, not just the "abusive" registrations that WIPO focuses on.
> ("all commercial disputes linked" to domain name registrations may be
> overbroad, as opposed to commercial disputes over names themselves.)
> 
> Esther Dyson
> 
> At 01:38 AM 07/06/99, Bret A. Fausett wrote:
> >Esther -- I'm confused about some of the statements in the ICANN Press
> Communique and what weight/accuracy those statements have. Could you clarify
> when you have a moment. The following was posted on ifwp.
> >
> >Thanks,
> >
> >Bret
> >
> >---------------- Begin Forwarded Message ----------------
> >Date:        06/04  10:10 PM
> >Received:    06/04  10:20 PM
> >From:        Bret A. Fausett, [EMAIL PROTECTED]
> >Reply-To:    IFWP, [EMAIL PROTECTED]
> >To:          IFWP, [EMAIL PROTECTED]
> >
> >I'm confused.
> >
> >I just re-read the ICANN Press Communiqu� from Berlin. 
> >
> >In the press release (written by the PR firm, not ICANN) is this:
> >
> >  The Initial Board noted that a uniform dispute settlement 
> >  mechanism was a necessary element of a competitive 
> >  registrar system. The Initial Board noted that the 
> >  scope of this policy should be wider than the cases 
> >  of abusive registration with which the WIPO report 
> >  deals, and ultimately cover all commercial dispute 
> >  issues linked to Domain Name registrations. 
> >
> >That last sentence is not in the Board's resolutions. What does it mean?
> Does it indeed represent a Board sentiment? Was that sentiment unanimous?
> >
> >Can someone who was in Berlin (or better yet, an ICANN Board member) shed
> some light on this?
> >
> >Thanks.
> >
> >   -- Bret
> >
> >
> >----------------- End Forwarded Message -----------------
> >
> 
> 
> Esther Dyson                  Always make new mistakes!
> chairman, EDventure Holdings
> interim chairman, Internet Corp. for Assigned Names & Numbers
> [EMAIL PROTECTED]
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> 

-- 
A. Michael Froomkin   |    Professor of Law    |   [EMAIL PROTECTED]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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