At 09:26 AM 6/7/99 , Michael Froomkin - U.Miami School of Law wrote:
>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.
Hi Michael,
Easy answer -- it will!
Don't take my word for it. Listen to the
audio recordings from the IP Constituency
(IPC) formation meeting.
There, it was publicly stated that RFC-3 is
addressing a problem that no longer exists --
namely cybersquatting. There, it was also
stated that the IPC and the DNSO must become
more proactive, and address these very issues
you are inquiring about.
Jay.
>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]
>> 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"
>>
>>
>>
>
>--
>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
> --> It's hot here. <--
>
Respectfully,
Jay Fenello
President, Iperdome, Inc.� 404-943-0524
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