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

["Michael D. Palage" <Michael@xxxxxxxxxx>]

Tim,

Where does ICANN derive its authority to enter into the contracts
through which it will collect approximately 40 million dollars this
year? 

Is it because the good people like me and you send in voluntary
contributions to the California non-profit corporation known as ICANN
that keeps things running? Or is it because ICANN has a legal right to
impose fees upon registration authorities based upon the authority
granted to it by a set of agreements that it has entered into with the
USG.

Clearly you and others are free to gather by the Root Server camp fire
and sign Kumbaya and blindly trust ICANN's position to "just trust us"
we are the technical coordinators of the Internet and we know what is
best. When I was on the ICANN Board I often use to repeat the following
Chinese saying, "True gold does not fear the refiner's fire." In this
instance I submit that the original basis upon which ICANN reserved
these names would not holdup under either a technical or legal fire.
Therefore, I stand by my original statement that we as a group should
not affirmatively vote in favor of a continued reservation of these
names.

Notwithstanding my objections, in the interest of consensus development,
I will try to offer alternate language for this straw poll which perhaps
finds a mutual suitable solution to our potential stalemate.

As a long time friend and colleague I appreciate the constructive
exchange, it brings back many fond memories from our days in the
registrar constituency :-)

Best regards,

Michael


-----Original Message-----
From: Timothy Denton [mailto:tim@xxxxxxxxxxxx] 
Sent: Wednesday, February 28, 2007 10:04 AM
To: michael@xxxxxxxxxx; Reserved Names Working Group ICANN
Subject: Re: [gnso-rn-wg] Comments on ICANN/IANA Reserved Names Reports


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&tr
> ademark=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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