Re: [ifwp] Re: new iana draft bylaws

[martys@pop.interport.net]

Prof. Mueller begins his critique of Mr. Dixon's request for a stable DNS
by noting that he is:

 "an unbiased academic scholar"

and finishes his posting with the following:

[let's] not feel
that we have to kiss the ass of a bunch of powerful but slow crybabies who feel
threatened by it. No special representation for trademark interests. No! None!
--MM

Prof. Mueller supports his "unbiased" view towrads trademark owners with
the following:


"It is now an established fact that brand name holders have been as likely
to abuse
the NSI dispute resolution process as to be abused by name squatters."

Professor, please cite a study which you didn't write which backs this
proposition.  Established facts tend be those which are uncontroverted.  I
think your facts are wrong.  I note that when Ms. Kleinman stated in a
posting to this group on Friday that "all studies"  supported her point of
view, I wrote in asking her to cite "all studies."  She did not respond.

Mr. Williams has written with a similar unsubstantiated endorsement of your
"fact," suggesting at least a willingness to believe your view (if not a
desire to analyze it).  I agree that cases like pokey.org, juno.com and
prince.com might make us feel that the "little guy" is getting picked on,
but that does not support the position that trademark owners are the true
villians of DNS abuse.

And by the way, the juno.com, prince.com and pokey.org situations were all
made possible by NSI rigging a policy that was uninformed by the most
important principles of trademark law. The abuses of the NSI process is an
argument for a good system, not the absence of a system.

As far as the general tone of your and Mr. Williams' response that this is
somehow a "big trademark owners vs. pioneers of the Internet" fight, let me
ask your opinion on something.  Certainly you would agree that YAHOO and
AMAZON.COM are the kind of heroes you are talking about, the kind of brands
we need to see flourish.  Well, what about the guy who registered
amazom.com, and the company (Data Arts) which registered every variation of
yahoo (i.e. ayhoo.com), which practice seeks to syphon off business from
these sites - is that the big trademark owners pushing the little guy
around, or is it an authentic threat to e-commerce, if we have no
procedures in place to stop these activities?


And how precisely would having a fair system of adjudicating domain name
disputes constitute a threat to today's heroes of e-commerce?.  Give us a
fact pattern.

I believe that Prof. Mueller is leading you folks down the garden path.
The irony of the situation is that domain names will only become a valuable
form of intellectual property if it has a stable system of allocation and
enforcement.  The DNS should DIALOGUE with people who are familar with the
world's trademark systems so that the DNS can LEARN from the world
trademark systems and adapt them to fit the uniqueness of the DNS.  I say
this because domain names are more like trademarks then they are like any
other form of intellectual propety (and you know domain names are a form of
intellectual property because people pay more than their face value for
them).

stating that domain names do not function as trademarks, that they are
merely "sttrings" flies in the face of your own experience, everytime you
type in yahoo.com, aol.com, microsoft.com (well, you may have other
feelings when you type that in), excite.com, cnn.com, msnbc.com, etc.,
etc., etc..

If you follow Prof. Mueller's ideas that there should be a zillion TLDs
which "de-couple" themselves from brands, and there be no safeguards,
dispute resolution mechanisms, no rights protection systems - then domain
names will be valueless as identifiers, and companies will realize they are
better off with random character strings as domain names, and will have to
rely exclusively on trademark protection to protect their branding.

P.S.  My comments refer to commercial uses of the Internet.

P.P.S. Stating that the U.N. agency known as the World Intellectual
Property Organization (WIPO) should not advise the DNS on intellectual
property portection because it is "biased" towards trademark law is like
stating that you should not go to a doctor for medical advice because he or
she would be biased towards medicine.  Don't disqualify someone because
they know what they are talking about.





>Jim Dixon wrote:
>
>> My concern is mostly with stability of the Internet; in this case
>> it is more than operational stability that we are talking about.
>> For the last few years the Internet has been increasingly disturbed
>> by confusion and disagreement over domain name questions. The basic
>> cause of this has been a failure to take into account the rights of
>> brand name holders as generally accepted in the outside world.  Our
>> stubborn refusal to recognize these rights has resulted in deadlock
>> at the heart of the Internet.
>
>As an unbiased academic scholar who has studied the domain name debate
>closely over
>the past three years, I can assure you that the source of the conflict has
>almost
>nothing to do with a "failure to take into account the rights of brand name
>holders." Jim's comment shows that people who are very good businesspersons and
>technicians can completely misunderstand basic issues in institutional
>development
>and political economy.
>
>The real problem stemmed from the absence of clear legal authority over
>the name
>space, and the new, unprecedented character of the name space as an economic
>resource. Entrepreneurs and technical people were proposing to create new
>TLDs, and
>IANA came up with draft-postel. In the meantime, courts of law in
>virtually every
>developed country began to, and still are, protecting legitimate trademark
>and brand
>rights via litigation.
>
>It is now an establshed fact that brand name holders have been as likely
>to abuse
>the NSI dispute resolution process as to be abused by name squatters.
>
>Aside from its total historical inaccuracy, Jim's implied identification of the
>crisis in Internet "governance" suffers from a terrible case of naivete.
>Intellectual property interests have a really bad, and very predictable,
>history of
>panicking at the emergence of new media, and proposing utterly stupid and
>destructive forms of property protection that would have no effect other
>than to
>stifle the medium in question. Had we "represented" the IPR/copyright
>people in the
>formation of the video cassette businesses, they would have banned the VCR, and
>failing that, they would have set up a ludicrous taxing system on
>household users or
>sales of equipment. Both attempts were defeated, and now the movie makers
>gain more
>profit from the video rental business than they do from first releases.
>
>In short, Jim, your attempt to privilege intellectual property makes no sense
>whatsoever.
>
>And I have heard from other ISPs this plaintive expressions of fear that
>"ecommerce
>is coming and if we don't clean up the Internet's act the medium will
>fail." Well,
>I'm sorry to be the one to break the news to you, but e-commerce is here,
>now. There
>isn't any way it's NOT going to happen. Dell Computer sells $5 million/day
>on the
>Internet now. Analysts estimate $327 billion in Internet commerce by 2002.
>All this
>is occurring and will continue to occur regardless of minor little
>problems certain
>brand holders experience with a few cybersquatters, and despite the so-called
>Intellectual property crisis that's always about to happen. As someone
>who's taught
>seminars on Internet commerce to business students on two continents, and
>who has
>watched them hatch business plans for aq wide variety of ideas, the simple
>fact is
>that Internet commerce makes enormous economic sense in a variety of
>industries.
>
>So let's develop the Internet, let's be of, by and for the Internet, and
>not feel
>that we have to kiss the ass of a bunch of powerful but slow crybabies who feel
>threatened by it. No special representation for trademark interests. No! None!
>--MM
>
>
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