Who is Kicking ICANN'S Can?
"C'mon people, if we all cooperate, we can get through this thing." - Chip Monk, Woodstock, 1969.
By Peter Kelman, Esq.
This article appeared in substantially the same form in the Boston Business Journal, August 24, 2001.
While ecommerce undergoes its shakeout, the Internet infrastructure undergoes a shakedown. Like physical real estate, the real estate of cyberspace has one key: location, location, location. To navigate cyberspace, just like to navigate physical space, you need a map. Today, the issue is who gets to draw the map, and if there is no consensus, can there be more than one map? Even among mapmakers, differences can exist as long as there is agreement on certain elements like street names. But if there is no agreement on the names of streets, where does that leave an erstwhile traveler? Confused.
Confusion may best describe the state of affairs domain name owners now confront as new "top level domains" (TLD's) are introduced into the hierarchy of domain names. In June, the Internet Corporation for Assigned Names and Numbers (ICANN) announced introduction of the ".biz" and ".info" TLD's, with ".pro" soon to come. The new TLD's were introduced to alleviate the ".com" logjam. For example, who should get the name "delta.com": Delta airlines or Delta faucets? And let's not be parochial, what about Delta Cookie Corp. in Australia?
What's
a Domain Name Holder to do?
If you own a .com domain, should you do anything about the new TLD's?
What if you own a trademark, but don't own a domain name, should you
do anything? Fair questions for which there is no obvious answer.
However, the registrars administering the new TLD's, (Neulevel, Inc.
for .biz; Affilias, Ltd. for .info) certainly have a pat answer to
that question. Their answer is that you should protect your rights
as an owner of valuable intellectual property and for a modest fee
file an intellectual property (i.p.) claim with each registrar. In
what is becoming a trend in the Internet registration business, each
registrar offers a "sunrise" period during which a trademark
owner can register its trademark with the registrar. What does i.p.
registration get you? Not much, other than automatic notification
if another party tries to register a domain name identical to your
trademark. I.P. registration does not secure a domain name nor does
it assure you of winning a domain name dispute. The most tangible
effect of i.p. registration is to transfer money (in the case of Neulevel,
$90) from you to the registrar. The further distressing news for mark
holders is that there is no central database that registrars use.
Not surprisingly, each registrar requires a mark holder to register
its i.p. claims solely with that registrar and enrich the registrar's
coffers.
Beyond the question of whether to register an intellectual property claim, the holder of a .com domain should consider whether to register in the .info or .biz TLD. This type of analysis points out a glaring flaw in the new TLD registration process. If you own widget.com, why not apply for widget.biz and widget.info. Especially if your site depends on consumer recognition, you will want as many hooks as possible. Nothing in the current system prevents a .com owner from registering an identical .biz name. But the intent of the new TLD's was not to duplicate the .com TLD, but to provide more outlets for parties that were shut out of the .com name grab. To further this objective, one wonders why ICANN did not impose a rule that a party could have the same name only in one TLD, not in duplicate or triplicate TLD's. While this would create a certain type of dispute as to whether businesses are "the same entity", this would be not different qualitatively than the current tenor of domain name disputes. Without such a rule, it remains to be seen whether the new TLD's provide a haven for .com refugees or whether they merely enable .com owners to extend their hegemony to other TLD's.
Cracks
in the Infrastructure
While ICANN is busy promulgating new rules for new TLD's, its authority
to regulate such matters is under attack from both internal and external
forces. Several groups have questioned ICANN's unilateral grip on
Internet naming schemes. Organizations like New.net, Inc., Atlantic
Root Network, Inc. and the Top Level Domain Association have initiated
plans to create their own registry listings. Internal to ICANN, operators
of TLD's for country codes (e.g. "ca" for Canada, "us"
for United States) have withdrawn their support for ICANN's domain
naming support organization. David Hernand, New.net's CEO believes
that market forces should dictate rules for TLD's. Mr. Hernand has
said, "We believe that the decisions about TLD's … would
benefit tremendously by using the market to create a climate for innovation."
The prevailing sentiment of such groups is perhaps best expressed
by Leah Gallegos, a board member of the Top Level Domain Association,
Inc. who asked, "Who died and conferred upon ICANN the totalitarian
rule of the Internet?"
Ms. Gallego poses an interesting question. The brief answer is the U. S. government. Going back to its genesis as a department of defense project to insure uninterrupted communications in the event of enemy attack, the Internet was originally regulated by the National Telecommunications and Information Administration (NTIA) of the U.S. Department of Commerce. In response to many factors, among which was the globalization of the Internet, in 1998 the NTIA invited the "Internet community" to fashion a proposal for self-regulation of the Internet. After much public debate, the "Internet community" responded with its plan to create ICANN and control passed from NTIA to ICANN. Inevitably such a process creates a distinction between those inside and those outside the "community." Now, three years later, ICANN faces the daunting task of bringing those outsiders within its folds. Talk about herding cats.
Is Mr. Hernand right when he argues that market forces should play a stronger role in shaping the domain name system? If nothing else, the Internet and the information age have taught us that the only constant in today's marketplace is change. Markets are driven to innovate and with innovation comes improvement and change. However, underneath the innovation and change, some strands of continuity and permanence must remain in place, otherwise there is no infrastructure to build on. In the information age, infrastructure is protocol and protocol implies one standard regulated by a central body. To permit the marketplace to shape protocol would invite forces of chaos to dismantle the permanence of infrastructure.
Where are we Today?
The watchword for today is "consumer beware." Beware of
scams and beware of too much faith in a fragile system. For example,
Neulevel plans to resolve multiple applicants requesting the same
domain name by selecting the winning applicant at random from all
applicants. In early August, Amazon.com, in a letter to Neulevel,
claimed that such a method was the equivalent of running an "illegal
lottery" in that it encouraged an applicant to submit multiple
applications (under different guises, of course), each of which cost
money. Neulevel responded by filing a lawsuit seeking a court to declare
that its methods are fair.
The Federal Trade Commission issued a consumer alert earlier this year, warning consumers about domain name registrars offering pre-registration services for the .biz and .info TLD's (www.ftc.gov/bcp/conline/publs/alerts/). You may be paying for nothing. Stuart Lynn, the President of ICANN has issued a 13 page impassioned white paper urging all netizens to come to their senses and play ball with ICANN and only with ICANN (www.icann.org/stockholm/unique-root-draft.htm). If there is more than one naming convention, he argues, the Internet breaks down.
Presiding over ICANN must be a thankless job. ICANN has the unenviable mission of bringing order to a multi-national, multi-lingual universe of individuals known for flaunting convention. Furthermore, under a dubious grant of authority, its police power is marginal. But without protocol and without infrastructure, anarchy reigns. Anyone who follows the descriptions of ICANN's tortuous public meetings knows ICANN sure tries hard. But certainly it could enhance its own approval rating if it developed a naming scheme that: a) does not require existing domain name holders to repeatedly fork money over to a registrar whenever a new TLD is introduced; and b) gives those dispossessed of land of .com a better chance of getting registered in a new TLD.
If there is such a thing as an expert in this field, it would be attorney Diane Cabell. A fellow at the Berkman Center for Internet and Society at Harvard Law School, Ms. Cabell, a member of the first ICANN advisory committee, is director of the Harvard Law School clinical program in Cyberlaw. Ms. Cabell argues that domain name disputes should be resolved not on the basis of intellectual property rights, but based on the content of the sites. However, until that day arrives, your interests may be best served by deciphering the arcane rules of the ICANN name game and playing ball by those rules.
Copyright Peter Kelman, 2001. All rights reserved.