Re: [gnso-rn-wg] Comments on ICANN/IANA Reserved Names Reports

[Timothy Denton <tim@xxxxxxxxxxxx>]

Greetings all:

I have been pondering my friend and colleague Mr. Palage's comments for 
while. It occurred to me that something was wrong with their 
assumptions, but until last night I had not put my finger on the source 
of the problem, as it appears to me.
To get to basics, the Internet, and its associated domain name system, 
derives from engineering, not from the magisterium of the law.  So, when 
an engineer looks at an arch, for instance, or a span, or a girder, he 
looks at the thing for its suitability to a task. He uses a design idea, 
he assembles the design into the plan for the bridge, and builds the 
bridge.
Likewise with software, he uses what comes to hand or mind to achieve 
his goals. He is not looking for authority to use them. His right to use 
the words of the english language, or the mathematical or design ideas 
of his predecessors in the field, is unquestioned, as long as it has not 
become the intellectual property of someone else.
He does not look to the source of his authority to do so. He is not 
involved with the trustees of the Pythagoras Foundation to obtain 
permission to use a right angle, or a set of formulae that assist him in 
his design. He does not have to negotiate with Paul Mockapetris and his 
lawyers to use the DNS, for example. The IETF serves as the testing 
place for engineering proposals, not the US Congress, the courts, or the 
departments of state.
When reserved names were devised for IANA, ICANN or registries, the 
engineers simply looked about for useful tools and found words like 
iana, ietf, whois, www and said: there is plenty of reason for us to 
reserve them and no particular reason why, out of the infinitude (or 
vast number)  of available word strings, these several should not be 
reserved. Is it sensible on its face to reserve "ietf" for the 
unincorporated IETF? Of course it is, but I wager that those who 
reserved it gave not a thought to the IETF's unincorporated status when 
they did so. They had no concern for a dispute resolution process that 
probably did not exist at the time. It was handy, it fitted the task of 
identifying the IETF, so the letter-string ietf was reserved.
Now Mr. Palage is a lawyer, as am I. As lawyers we exist in a political 
system, with parliaments, legislatures, sovereigns, and a legal system 
that derives from political authority. Concepts of rights, ownership, 
leasehold, intellectual property, and statutes fill our minds.
Following in  the mind set of the Anglo-American legal tradition, Mr. 
Palage asks ICANN lawyers to go back and dig out the documentation that 
would show the right of ICANN to reserve names on behalf of itself, 
registries, IANA. Rights to use must lie in some document somewhere, 
right? And if there is no document, title is disputable, even invalid. 
We are all aware that if there is no title in IANA or ICANN, then 
someone's rights to "ietf" may have been usurped. Failing that, the 
constitutional bias of American law would have it that all rights not 
explicitly granted to the federal government must lie with the states, 
and all rights not explicitly granted to the governments in general by 
the constitution remain with the people. No title, no right to use, 
therefore it is unreserved.
So Mr. Palage would have the lawyers of ICANN scurry about looking for 
titles as if the right to use "ietf" were going to be found in a 
parchment document in dusty archives when King John Postel granted a 
fiefdom to the Duke of Iana 1381, or rather, 1981. You can see that I 
think this an exercise akin to trying to lift the Gross Domestic Product 
with a forklift truck, or surfing on a crimewave. It is the application 
of a set of ideas to a place they do not belong.
The issue, as I see it, is that lawyers need to be cautious about 
extending the reach of their concepts into areas such as engineering, or 
anything else, for that matter, where their application may serve no 
useful purpose. The use of concepts such as of "rights", "title", 
"record"  evince  a tendency to  subject what were originally  sensible 
design decisions to  the claims of law and the pretensions of legal 
theory. I am saying that  no "record" is needed to determine that "ietf" 
is handy, convenient, and useful to identify the Internet Engineering 
Task Force, any more than we need a record to determine that a wall 
should normally stand 90 degrees to the horizontal. The reasoning 
processes of lawyers take no priority here over any other sensible 
person's.
Accordingly, while it might be interesting from someone's perspective to 
answer the questions Mr. Palage wants answered, it is not necessary for 
us to do so in order to keep certain names reserved.He writes:
   "I believe that any continued reservation would
   need to be based on an actual operational/security/stability need."

I say that if  ICANN thinks is convenient, and the WG thinks it is convenient, 
to maintain some reservations, on reasonable grounds, they may do so. Lawyers 
do not have superior rights or skills to argue what this convenience may 
consist of - though being good arguers, they might think of better arguments.


   "Questions that ICANN should need to answer include have any of the
   ISTF second level domains current used in other gTLDs (e.g. ISTF.COM
   (domain name currently for sale) and ISTF.NET (parked page)) caused
   anyoperational issues."

The absence of "operational issues" in names not reserved does not have any 
particular bearing on the convenience of reserving the few names actually reserved for 
ICANN and its associated bodies. There is no burden of proof here. Note another legal 
precept imported into an engineering or business decision.


   "Has ICANN contacted ISOC to ask if they would like
   a continued reservation of this term. If ISOC requests the continued
   reservation of this term could ISOC provide any evidence of harm in
   connection with the use of ISTF.COM or ISTF.NET?"


The WG is free to determine that it can consult ISOC about the continued 
reservation of isoc, or iana. It is also free not to, and to reserve the 
name on behalf of the IETF because it chooses to, on the basis of 
convenience to the IETF, the difficulty of ICANN sitting in a dispute 
resolution process over names associated with it or allied 
organizations, or any other basis that satisfies the reasoning of the 
WG, the GNSO and ICANN.
I may be hammering on this nail after it has been driven into the wood. 
I am at pains to vindicate the rights of engineers and of ordinary 
people to make sensible decisions for the public good in ways that do 
not require turning to legal concepts to justify them. In this case I 
think we see the habits of mind of the legal profession overstepping the 
bounds of what is properly legal to advance a professional agenda into 
the decision-making processes of the WG and of ICANN's assemblies. I 
think this style of professional reasoning, while it can be useful, 
should be resisted in this instance. I also encourage other lawyers to 
be sensitive to the notion that theirs is a style of reasoning, rather 
than, in many cases, the only legitimate way to reason about issues.
- 
Timothy Denton, BA, BCL
37 Heney Street
Ottawa, Ontario
Canada K1N 5V6
www.tmdenton.com
1 613 789 5397
Eastern time zone



michael@xxxxxxxxxx wrote:
> Hello All:
>
> Although I intend to participate on tomorrow's call via telephone,
> provided that my red eye flight from LA is not delayed, I wanted to
> provide the following comments in connection with the ICANN/IANA
> Reserved Names subgroup.
>
> While I appreciate the deference that we should provide ICANN staff as
> they juggle many responsibilities in a less than ideal environment, I
> must respectfully disagree with the statement of ICANN staff regarding
> their position that these names should continue to be reserved. The
> basis for my concerns are set forth below.
>
> First, given that the current ICANN staff does not have access to the
> documentation that provides the basis for this original reservation, I
> question the prudence for this Working Group to affirmatively continue
> a reservation in which we do not have the full set of facts before us.
> The legitimacy of the output from this working group must be based on
> documented fact. If ICANN is unable to locate the documentation that
> formed the basis of the original reservation, ICANN should be requested
> to provide a basis for the continued reservation. I submit that merely
> preserving the status quo is unacceptable given the potential dangerous
> precedent that might be set as elaborated below.
>
> To illustrate the potential arbitrary and capricious nature of this
> original list of reservations. consider the reservation of the string
> ISTF. As someone that has participated in ICANN since shortly after its
> creation, I was at a total loss of words for what this string
> represented. After some Google searching I believe I found that this
> string appears to be an acronym for the "Internet Societal Task Force."
> Now what I found somewhat surprising was the fact that despite ISOC
> being the registrant of the ISTF.ORG domain name, it appears that
> domain name was not resolving. ISOC instead chose to use the ISTF
> string as a third level domain name istf.isoc.org. 
>
> Now if ICANN is unable to locate the original documentation associated
> with this reservation, I believe that any continued reservation would
> need to be based on an actual operational/security/stability need.
> Questions that ICANN should need to answer include have any of the ISTF
> second level domains current used in other gTLDs (e.g. ISTF.COM (domain
> name currently for sale) and ISTF.NET (parked page)) caused any
> operational issues. Has ICANN contacted ISOC to ask if they would like
> a continued reservation of this term. If ISOC requests the continued
> reservation of this term could ISOC provide any evidence of harm in
> connection with the use of ISTF.COM or ISTF.NET?
>
> Now another consideration that must be taken into account is Paragraph
> 34 of the original WIPO Domain Name report that states "[t]he goal of
> this WIPO Process is not to create new rights of intellectual property,
> nor to accord greater protection to intellectual property in cyberspace
> than that which exists elsewhere.  Rather, the goal is to give proper
> and adequate expression to the existing, multilaterally agreed
> standards of intellectual property protection in the context of the
> new, multijurisdictional and vitally important medium of the Internet
> and the DNS that is responsible for directing traffic on the Internet."
>
> ISTF is currently a nationally registered trademark within the United
> Kingdom, see
> http://www.patent.gov.uk/tm/t-find/t-find-number?detailsrequested=C&trademark=2371647.
> By reserving the string ISTF from registration negatively impairs the
> rights of trademark owners to register their trademark as a second
> level domain. Although trademark owners do not have an absolute right
> to register their trademark as a domain name, where ICANN is going to
> affirmative reserve and deny a trademark owner this right they must do
> so on clearly documented evidence, not merely based upon
> unsubstantiated recollections.
>
> I could continue with further examples but need to turn my attention
> back to the geographic reservation subgroup. I hope that these concrete
> examples demonstrate the shortsightedness of affirmatively approving
> these reservations without a proper record before us. I think we need
> to take a pause and evaluate the implications of the proposed straw
> poll that has been advanced to this group.
>
> Best regards,
>
> Michael D. Palage
>
>
>
>   

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