IP: damning critique of WIPO Internet domain name proposal-please circulate

[Dave Farber <farber () cis upenn edu>]

Date: Sun, 07 Mar 1999 23:32:22 -0500
To: "Lance J. Hoffman" <hoffman () SEAS GWU EDU>


        Just in time for the last public hearing this coming Wednesday (March 10,
1999) in Washington, law professor Michael Froomkin of the University of
Miami has issued on his web page a damning critique of the current domain
name proposal of the World Intellectual Property Organization.  I'll let
his paper speak for itself, but this issue is so important to the future of
an Internet-enhanced society that I urge wide circulation and reading of
the Froomkin critique before a grand disaster is set up by an organization
with tenuous legitimacy and experience in Internet-related matters, but
with plenty of baggage from the existing powers-that-be.  I've reproduced
just the opening part below, but URLs to more detailed arguments are given
there.

> From Froomkin's Web page (http://www.law.miami.edu/~amf/quickguide.htm):

 Major Flaws in the WIPO Domain Name
                             Proposal --
                          A Quick Guide

                       A. Michael Froomkin, Professor of Law

Executive Summary

The World Intellectual Property Organization's plan to restructure the way Internet domain names in .com, .net, and 
.org are assigned and adjudicated is deeply flawed. The plan, contained in WIPO's "Interim Report" is designed to solve 
problems caused when Internet domain names collide with trademarked words. WIPO was asked to make suggestions for 
better dispute resolution, and it claims to have produced a plan that creates no new rights for intellectual property 
holders. In fact, however, the plan would impose extensive Alternate Dispute Resolution on all domain name registrants 
accused of infringing of any type of intellectual property with their registration.

The WIPO plan's flaws include:

Bias. The plan is biased in favor of trademark holders; Enabling censorship. The WIPO plan fails to protect fundamental 
free-speech interests including parody, and criticism of corporations; Zero Privacy. The WIPO plan provides zero 
privacy protections for the name, address and phone number of individual registrants; Intimidation. The WIPO plan 
creates an expensive loser-pays arbitration process with uncertain rules that will intimidate persons who have 
registered into surrendering valid registrations; Tilts the playing field. The WIPO plan would always allow challengers 
to domain names registrations to appeal to a court, but would often deny this privilege to the original registrant; 
Smorgasbord approach to law. Instead of directing arbitrators to apply applicable law, WIPO proposes using additional, 
different, rules it selected-rules that will often disadvantage registrants.

A brief memo explaining these points follows. A more detailed, 50-page version, is also available in various file 
formats from http://www.law.miami.edu/~amf .  This paper also proposes an alternate, fairer, reform plan.

The key elements of the simpler reform plan are:

Reduce speculative registration: Require advance payment before registration Penalize false contact details: 
De-register domains with fake contact information Consider creating special rules to penalize large-scale domain 
speculation Trust courts to continue to clarify relevant law Understand that rapid changes in technology may make 
domain names less important Create differentiated commercial and non-commercial top-level domains