Some clarifications about your clarifications...
Craig McTaggart wrote:
>
> Gordon Cook wrote:
>
> <snip>
>
> > The "naming and addressing system" is NOT a "public resource. The
> > language is straight out of the gTLD-MoU. It is a clear unconstitutional
> > taking of private property.
>
> <snip>
>
> I've held back on all of the other ridiculous claims in this thread but this
> is the one that always gets me going.
>
> Some clarifications about private property and identifiers.
>
> You do not own your domain name. You do not own your phone number, your
> street address, or IP numbers.
I'd like to know where you get this stuff. In many jurisdictions
courts would tend to disagree with most (if not all) of that
statement.
>
> And here's another one: you don't own your trademark either. You hold
> certain rights, recognized by courts with respect to common law trademarks,
> or granted by the state under statute with respect to registered trademarks.
> If you stop using your trademark, or if you don't renew the registration for
> it, or if the registration is expunged, you may cease to hold those rights.
> It is not a matter of 'owning' a trademark. It is a matter of holding
> certain rights in relation to a certain string of characters or distinctive
> design which are recognized or granted by public authorities.
>
> Yes, trademarks appear to be capable of being 'bought' and 'sold', but what
> really happens in such a transaction is that the 'seller' promises to ask
> the registration authority to change the name of the registered holder to
> that of the 'buyer.' Nothing is actually bought or sold, but rather value
> is given in exchange for an apparent 'transfer' of the relevant rights. No
> property is transferred. _Rights_ are _assigned_. Very different.
<sound of angels dancing on the head of a pin applauding the analysis>
Hmmmm. It's a nice try but just because you can define things that way
doesnt make them true. In any event, if something can be bought and
sold, assigned to heirs, subject to TRO, etc. I want to be there in
the courtroom when you argue that it is not property. I could use the
same arguments with respect to land ownership. In fact I think I did
back in law school and it was good for a chuckle or two.
>
> Getting back to domain names, I'll ask the same question I've been asking
> for almost a year. If you own your domain name, who owned it before you?
> Many on this list rail against the idea of 'ownership' of the name space
> being 'transferred' to ICANN. I agree that that would be a bad thing. It
> simply does not make sense to speak of ownership of domain names at all.
Why ask this question? Are you suggesting that no one can own patent
or trademark either because no one owned them before?
>
> Domain names and IP numbers are identifiers. We know that domain names have
> vastly more commercial value than IP numbers, but functionally they are
> almost identical. Neither can be owned, and neither IANA, the regional
> number registries, NSI, nor even the USG own them. Certain agencies
> currently assign their use to certain people. These assignments are not
> transfers of ownership. Domain name holders must pay renewal fees to
> continue using them. You do not pay renewal fees to keep owning something.
> If you stop paying these fees, or for some reason your assignment of a
> particular name is withdrawn, you lose the right to continued use of that
> name. Ownership is not transferred to (or back to) anyone.
>
> Thinking back to the earliest days of ARPANET development, when surely the
> property rights of which you speak must have sprung, can you find any record
> of any awareness of 'ownership' of the identifiers used in the network? Did
> the operators of new nodes have to pay somebody for their identifying
> number(s)? Even though an 8-bit address field limited the number of sites
> to 256, there was no sense that these resources should be auctioned to the
> highest bidder. Numbers were simply assigned for use by sites. When more
> numbers were needed, the address field was expanded and new numbers
> assigned. And everybody carried on using the numbers, without speculating
> in them.
I see no relevance in discussing arpanet here. Just because someone
was not aware of the value of some object in the past has never
precluded others from coming along later and profiting.
>
> Consider the words of the only authoritative administrator the Internet name
> space has ever had, referring to designated managers of TLDs, in RFC 1591:
> "Concerns about 'rights' and 'ownership' of domains are inappropriate. It is
> appropriate to be concerned about 'responsibilities' and 'service' to the
> community." Ownership has clearly never been contemplated with respect to
> the name space, and I would ask those who refer to the transfer of
> responsibility over the name space as "a clear unconstitutional taking of
> private property" to explain to me just what elements of the DNS constitute
> private property. Servers, yes. Routers, yes. But the names and numbers
> themselves? Was Jon Postel just plain wrong? I doubt it.
well he was many things but I dont recall him ever claiming to be a
judge, lawyer or legal scholar. So the fact that he said something is
pretty well irrelevant. Did the courts in Virginia listen to him
recently? I think not.
>
> Now much like the trademark example, these days it is common to refer to
> owning domain names and buying and selling them and whatnot. This is
> because registration of names, like trademarks, provides for exclusive use,
> which does start to look like ownership after a while. Because such
> registrations can have significant commercial value, we need a stable,
> authoritative registration authority which can assign exclusive use rights
> and attest to such assignment in the face of challenges from others who say
> they should hold those rights instead. The US Patent & Trademark Office,
> for example, is just such an authority. It is a creature of statute and is
> recognized by the US courts as the sole authority in the field.
>
> Much like the _global_ trademark 'name space' (as opposed to the national),
> the Internet name space is not nearly so unified or legally stable. We are
> currently searching for a stable, recognized authority over domain names.
> If we don't have one, then, among other things, the likelihood of name
> collisions increases, with a resulting loss of usefulness of the DNS
> generally. For some people, that would be just fine. For others, that
> would be unacceptable. But what could really muck things up is if people
> think that the framework of analysis for domain names (and the associated
> systems surrounding them) is one of *ownership* instead of *use*. It's one
> thing to say that characters can be exclusively used, but quite another to
> say that they can be owned.
>
> I don't like ICANN all that much either, but consider this a plea to those
> on all sides of this debate to avoid using concepts of ownership in their
> analyses and refer to concepts of use (yes, even exclusive use), instead.
> What we're all trying to figure out is who has (or should have) the
> authority to make exclusive assignments of Internet identifiers (and on what
> terms), not who owns what. The difference is fundamental to the nature of
> the Internet (think Open Source vs. proprietary code) and will play out in
> many aspects of Internet architecture and policy as the network continues to
> develop.
>
> Craig McTaggart
> Graduate Student
> Faculty of Law
> University of Toronto
> [EMAIL PROTECTED]
--
Dan Steinberg
SYNTHESIS:Law & Technology
35, du Ravin
Box 532, RR1 phone: (613) 794-5356
Chelsea, Quebec fax: (819) 827-4398
J0X 1N0 e-mail:[EMAIL PROTECTED]
