>From: Barbara Simons <[EMAIL PROTECTED]>
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>To: Michael Sondow <[EMAIL PROTECTED]>
>Cc: IFWP <[EMAIL PROTECTED]>
>Subject: Re: A Question for Ms. Simons
>References: <[EMAIL PROTECTED]>
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>Dear Michael,
>I infer from your note that you approve of my article
>on government surveillance. I'm glad to hear that.
>You may also like the article I've included below,
>a version of which will be appearing in the next issue
>of Communications of the ACM. It was last modified
>at the end of December, so the discussion of etoy.com
>ends there.
>Regards,
>Barbara
>
>Michael Sondow wrote:
>
>> If you believe what you wrote in this article, Ms. Simons, then why
>> do you support the secret organization ICANN, which has been put
>> into place by the USG in part to give the U.S. intelligence
>> community greater control over the Internet?
>>
>> Building Big Brother
>> by Barbara Simons, Pres. ACM
>>
>> http://www.cisp.org/imp/february_2000/02_00simons-insight.htm
>>
>> ============================================================
>> Michael Sondow I.C.I.I.U. http://www.iciiu.org
>> Tel. (718)846-7482 Fax: (603)754-8927
>> ============================================================
>
> Trademarking the Net
>
>Net-based shopping has come into its own, and the value of Internet �real estate� has
>become obvious
>both to older established companies and to the new net based companies. Name
>recognition has come
>to be synonymous with an easy to remember domain name. Because there is only one
>�dot com� top
>level domain name, names in the dot com domain have become a scarce resource. The
>irony is that the
>current set of domain names is an artificial construct, created before the rush to
>cash in on the
>Internet and e-commerce. In theory the number of domain names that can be created is
>unbounded, but
>the practical realities might force us to continue living under the current regimen,
>even though it
>is obviously flawed. The question is: Will the Net survive efforts to apply
>trademark law to domain
>names, and, if so, how will it look in the future?
>
>Trademark law has become intertwined with doing business � or just hanging out � on
>the Internet.
>The kind of trademark law that some envision for the Net is much more restricted than
>that which
>exists in �real life�. In the United States there are at least two dimensions for
>trademarks: area
>of business and physical location. Thus, there is no problem with United Van Lines
>and United
>Airlines co-existing. Few people who want to fly from San Francisco to New York are
>likely to
>contact United Van Lines, and people with a household of furniture to move are
>unlikely to purchase
>tickets on United Airlines. But there can be at most one www.united.com. (It
>belongs to an
>Internet messaging company). Similarly, there could be a Simons Shoe Store in Reno
>and another
>Simons� Shoes in Miami.
>
>It�s bad enough that the current system of domain names collapses a two dimensional
>space into a
>small set of points. Worse yet is the effort to restrict look-alikes on the Net. A
>dramatic
>example is the situation that pits etoys.com against etoy.com. In October 1995 a
>group of European
>artists started their etoy.com web site. Roughly two years later etoys.com started
>their web site;
>they also filed for a US trademark. When the owners of the etoy.com web site learned
>of the
>etoys.com trademark filing, they filed for a trademark on their domain name. A
>trademark was
>granted to etoys.com, but the etoy.com trademark request is still pending.
>Meanwhile, etoys.com
>attempted to purchase the etoy.com web site for about $400,000 in stock and cash.
>When their offer
>was rejected, etoys.com sued etoy.com. The lawsuit claims that �the antisocial,
>obscene, and
>offensive images associated with defendants� use of the mark �etoy,� both on the
>Internet and
>elsewhere, have tarnished the ETOYS� mark and the eToys brand name...�
>
>On November 29 a federal judge in California issued an injunction against etoy.com.
>Because of
>potential fines of up to $10,000 per day, the etoy.com web site was taken down. Etoy
>appealed the
>decision, and on Dec. 29 eToys announced that they had offered to drop their lawsuit
>against etoy.
>However, eToys also either requested, or stating as a precondition, depending on
>which press release
>you read, that etoy "give good faith consideration ... to concentrating the
>profanity, nudity and
>violence that is sometimes part of the etoy corporation message on etoy corporation's
>other
>websites." An etoy lawyer, quoted in The New York Times, rejected the eToys
>request, saying "Etoy
>cannot give eToys veto power over the content on its site." As of the writing of
>this article the
>resolution is uncertain, and the etoy web site remains closed. Several sites have
>been created in
>support of etoy.com, for example http://www.toywar.com/.
>
>The etoy vs. etoys dispute raises several disturbing issues. Even if one accepts
>that US law should
>apply to organizations located in Europe, etoy and etoys differ both in physical
>location and in
>area of business. In fact, etoy is not even a commercial entity; it is an artists
>group. So, if
>the case did not involve the Internet, it�s unlikely that the injunction would have
>been issued.
>
>The situation may worsen, thanks to the recently passed bill entitled, �The
>Anticybersquatting
>Consumer Protection Act�. This law - rushed into existence without broad discussion
>or public
>interest participation - bypasses the Uniform Domain Name Dispute Policy adopted by
>ICANN (Internet
>Corporation for Assigned Names and Numbers) in late October. This international
>agreement, hammered
>out over years of work and with many diverse parties, states that an owner of a
>domain name that is
>being contested by a �complainant� must submit to an international cyberspace
>tribunal if accused of
>bad faith registration of domain names, otherwise known as �cybersquatting�. The
>rules provide a
>very fast, inexpensive mechanism for removing domain names from true cybersquatters.
>The worst thing
>that can happen to the domain name owner under ICANN is that the owner loses the
>domain name.
>
>By contrast the federal legislation makes the domain name owner liable for civil
>action with the
>possibility of fines of between $1000 and $100,000 per domain name, even without a
>finding by the
>court of damages to the complainant. Confronted with the possibility of a
>significant fine, many
>domain name owners who happen to be individuals, small businesses, and noncommercial
>organizations
>are likely to relinquish their domain names when challenged by a large trademark
>holder, even if the
>threat against the domain name is entirely frivolous.
>
>While cybersquatting is frequently discussed, �reverse domain name hijacking� is not.
>RDNH is the
>bad faith prosecution of domain name owners. The ICANN policy balances the rights of
>both sides,
>including allowing the domain name holder to bring suit against the complainant in a
>convenient
>jurisdiction. If the suit is brought in a timely manner, the domain name will not be
>transferred
>from the domain name holder to the complainant.
>
>Another major problem with the legislation is that it uses a legal construct called
>�in rem�
>(literally to take an action against a thing, in this case the domain name, as
>opposed to �in
>personam�, which means to take an action against a person) to bring most domain name
>disputes under
>the jurisdiction of United States law. Consequently, anyone holding a domain name
>obtained from a
>US registrar or from the US based registry Network Solutions � all dot coms, dot
>orgs, and dot nets
>- now can be required to defend that domain name in a US district court under US law,
>independent of
>where the person or company may be physically located.
>
>I suspect that the rest of the world will not look kindly on the claim that all
>individuals and
>organizations with, for example, a dot com domain name are covered by US law. As a
>result, we may
>start seeing other countries pass legislation that may or may not be in conflict with
>US law. An
>unfortunate outcome could be the balkanization of the net, making e-commerce
>difficult, if not
>impossible. Without a healthy e-commerce, many of the financial underpinnings of the
>Internet could
>collapse. I�m sure that this was not the intent of the writers of the US legislation.
>
>About a year ago the ACM Internet Governance Committee (ACM-IGC) was created. The
>ACM-IGC, led by
>Randy Bush, then ACM-IGC chair, and Kathryn Kleiman, ACM-IGC Senior Policy Analyst,
>played a pivotal
>role in the creation of the ICANN Uniform Dispute Resolution Policy, as well as the
>creation of the
>Non-Commercial Domain Name Holders Constituency (NCDNHC). You can obtain additional
>information
>about the ACM-IGC, NCDNHC, ICANN, and the legislation at
>http://www.acm.org/serving/IG.html.
>
>
>
>
--
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