COMMENTS ON THE REPORT OF WORKING GROUP C
Filed by the
ON DOMAIN NAMES
April 13, 2000
These comments on the report of Working Group
C are filed on behalf of the Copyright Coalition on Domain Names, a coalition of
copyright industry groups (listed below).
CCDN takes no position
on whether new gTLDs are needed; clearly there are good arguments on both sides of
that proposition. Nor do we necessarily disagree with the concept of an initial
rollout of six to ten new gTLDs, followed by an evaluation period. In our view,
neither of these "consensus positions" reflected in the report addresses the critical
questions of the preconditions for initiating new gTLDs, and how those new gTLDs
should operate. If the preconditions do not exist, and the operating guidelines
are wrong, then six to ten new gTLDs is far too many. If, on the other hand,
the preconditions are met and sound operating guidelines are in place, then the well-planned
rollout of new gTLDs could potentially be carried out with a greater number than
six to ten.
The following ground rules should be incorporated in the operating
principles of every new gTLD:
(a) Registrant contact
All registrants of Second Level Domains (SLDs) should be required to provide
complete and accurate contact data, and to keep it current. Failure to fulfill
this obligation should result in termination or cancellation of the SLD.
Managers of each gTLD must provide free, real-time
access, via the World Wide Web, to a current database of contact data on its registrants.
This data should be fully searchable and should be available to the public without
substantial restrictions on use (other than those restrictions required to protect
the integrity and availability of the database or its exploitation for purposes such
as inappropriate mass commercial solicitations).
[c] Effective dispute
An effective dispute resolution policy for the new gTLD must
be in place before it begins taking any registrations. CCDN welcomes the new
Uniform Dispute Resolution Policy and looks forward to the evaluation of its operations.
It is far too soon to tell how effective the UDRP has been, since it has been in
operation for just a few months and has resolved few contested cases. The dispute
resolution policy for a new gTLD need not necessarily be the same one that has been
adopted for the existing gTLDs, but however it is structured it should be capable
of delivering resolution of disputes over the registration and use of domain names
swiftly, in a transparent manner, at low cost, and as efficiently as possible.
Protection for famous marks
This is the bailiwick of Working Group B, so we mention
it here simply as one of the essential prerequisites for a successful new gTLD.
(e) Compliance Review
There must be an effective mechanism
whereby ICANN or a comparable body can verify gTLD compliance with these policies,
including a mechanism for receiving and resolving complaints that a specific gTLD
manager is not complying with these policies.
If these preconditions
are in place and new gTLDs are bound to operate in accordance with these criteria,
there is no reason why new gTLDs should not be inaugurated, at a reasonable and controlled
pace, so that their success may be evaluated. However, if new gTLDs are allowed
to commence operations before these criteria have been satisfied, there is a real
risk of serious harm to consumers, intellectual property owners, and all legitimate
participants in the domain name system.
The Working Group C report appears
to denigrate some of these concerns by characterizing them as "the argument that
ICANN should impose substantial delays on the initial deployment of new gTLDs in
the interest of adopting or perfecting trademark-protective mechanisms."
That misses the point and understates what is at stake. This issue does not
affect only trademark owners. Consumers have a vital interest in a strong and
transparent Whois system, so that they can determine whom they are dealing with online.
All domain name registrants have an interest in a fair, efficient dispute resolution
process. Basic principles of accountability and fairness require that domain
name registrants should not be allowed to do business - legitimate or otherwise -
under the cover of clearly false contact details provided during the registration
CCDN submits that the criteria listed above are not as controversial
as they used to be. The basic contact data and Whois rules are already firmly
established in the current gTLD environment, and are gaining wider acceptance within
the ccTLD universe as well. ICANN has recognized the need for a compliance
capability (point (e) above) and is working to develop it. The existing UDRP,
while subject to legitimate criticism for its shortcomings, is a step in the right
direction; and, as noted above, other dispute resolution mechanisms may also be applicable
in the new gTLDs. And substantial progress is being made on the famous marks
issue. CCDN and its members believe that the status quo could and should be
improved in all these areas, but the progress toward a satisfactory environment for
the rollout of new gTLDs is quite remarkable and should not be belittled as an effort
to "impose substantial delays."
Finally, CCDN wishes to call attention to
the emerging issue of chartered gTLDS. When the ability to register a domain
name is limited to entities engaged in a certain kind of business or other activity,
or meeting other qualifications, very significant questions are raised which must
be carefully resolved. Any chartered gTLD that is approved should promulgate
clear and specific rules about who is and is not entitled to register Second Level
Domains in that space, and about what activities are and are not appropriate or acceptable
on the corresponding sites. Who decides these questions, and how disputes about
them may be expeditiously resolved, are also questions that must be decided.
All this must be done before the chartered gTLD opens its doors, not afterwards,
when disputes and conflicts have already arisen. Rather than prolonging the
now-familiar debate about whether to open new gTLDs and how many, ICANN and the DNSO
should devote more attention to the process of setting guidelines for the establishment
and operation of potential new gTLDs, especially chartered gTLDs.
Steven J. Metalitz
Counsel to CCDN
c/o Smith & Metalitz, L.L.P.
1747 Pennsylvania Avenue, NW
Washington, DC 20006-4604
(202) 833-4198; Fax: (202) 872-0546
American Film Marketing Association
American Society of Composers,
Authors and Publishers
Association of American Publishers
Business Software Alliance
Interactive Digital Software Association
Picture Association of America
National Music Publishers' Association
Industry Association of America
Software and Information Industry Association