At 03:53 AM 7/8/99 -0700, Dennis Schaefer wrote: You've asked some of the right questions; whether you get any response should indicate the extent, if any, to which Working Group A has been captured by the big money, ecommerce, trademark holder interests and has ignored these legitimate issues. Bill Lovell > >Working Group A obviously did a lot of work on this topic, and my concerns >below in no way diminish my appreciation of that fact. > >However, I am troubled that the preliminary conclusions of July 7, 1999 >were confined to very specific subquestions which did not address the broader >issues of appropriateness, fairness, and overall balance -- all of which >are essential to any attempt at democratic governance of the Internet. > >If ICANN were to adopt WIPO Section 3 including the commentaries of Working >Group A, it would be permitting its strong obligation to protect the >intellectual property rights of large businesses to overshadow its equally >strong obligation to protect the property of individuals and small >businesses. It would achieve this effect by having elevated domain names >to the status of trademarks. > >Domain names at present are not trademarks under US or international law. >They are a locator, like an address or a phone number, and they should be >given a commensurate level of respect and protection by ICANN. They are >both free speech and private property -- as well as a limited resource. > >The US Government is constrained from depriving anyone of these speech or property >rights without meeting strict due process restrictions. While private, ICANN is >acting in this instance as a government in that it is exerting absolute >control over a major channel of interstate commerce, and in so doing is >requiring individuals to waive their First and Fifth Amendment rights as a >condition of being permitted to speak and to conduct business on the >Internet. At the very least, ICANN should observe the same restraint as >the US Government, which in this case would not attempt this action without >a Constitutional amendment, specific Congressional authorization, or Senate >ratification of a treaty negotiated by the President. > >Raising domain names to the status of trademarks -- and thereby imposing significant >restrictions on their use -- is something that only a government may do. Without a >national or international mandate in hand, in my opinion, ICANN should exercise >great caution before taking such a step. Moreover, it is not even necessary to >broach this legal issue at this time simply to create a uniform dispute >procedure. Doing so could well harm ICANN at this crucial stage of its >existence. > > >In order to ensure that ICANN's policy does not unduly burden interstate >commerce , or violate the speech and property rights of small businesses >and individuals, I respectfully urge Working Group A to request the Names Council >and the ICANN Board to acquire a legal review of the following >questions prior to issuing a formal recommendation: > >a) Does the proposed administrative dispute resolution procedure require the >consent of each national government whose intellectual property laws >do not currently classify domain names as trademarks? > >b) Can ICANN and WIPO request the General Assembly of the United Nations to >convene an international conference on the Law of the Internet for the purpose of drafting an international >convention on domain names that is consistent with the national laws of participating states? > >c) Does anything in the existing NSI dispute procedure preclude ICANN's >adoption of that procedure until ICANN has acquired a detailed analysis of >the legal considerations associated with direct intervention in trademark law? > >Submitted with thanks to the members of Working Group A. > >Dennis Schaefer >[EMAIL PROTECTED] >
