IP: the joint ACM/ISOC domain names letter

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

> Date: Sun, 28 Mar 1999 10:46:41 -0800
> From: Barbara Simons <simons () acm org>


> Dave,
> This might be of interest to some of your readers.
> I've included the text of the letter below, as well
> as an equivalent Word attachment.
> Regards,
> Barbara
>
> WIPO Internet Domain Name Process
> World Intellectual Property Organization
> 34 Chemin des Colombettes
> P.O. Box 18
> 1211 Geneva 20
> Switzerland
>
> Re: WIPO’s RFC 3
>
> To the WIPO Internet Domain Name Process Panel:
>
> As presidents of the oldest and largest educational and professional computing and Internet
> societies, we are writing to you regarding the rules for the adjudication of disputes of global
> top-level domains (gTLDs) proposed in WIPO's Interim Report on the Internet Domain Name Process,
> RFC-3 (Dec. 23, 1998).   We are particularly concerned that the plan may negatively impact the
> Internet and may harm the civil liberties that create the climate of free inquiry and debate in
> which science and technology flourish.  We are also concerned that these rules will inhibit economic
> development by discouraging participation in the Internet.
>
> Our first area of concern is that the proposed policy favors large corporations that own trademarks
> over small companies and individuals.  If an arbitration decision goes against the trademark holder,
> the holder still has the option of taking the case to court.  By contrast, if an arbitration
> decision goes against the domain name holder, the domain name is quickly revoked, even if the domain
> name holder chooses to appeal.  The right to appeal a decision may not be equally meaningful in all
> jurisdictions, especially those, which do not have judicial review of arbitrations as a matter of
> course.  Therefore, less wealthy parties often will be unwilling to risk losing what will inevitably
> appear to be an uncertain case decided by uncertain rules, especially in a "loser-pays" system.  As
> a result, it seems all too possible that the net result of the WIPO proposals will be to enable
> "reverse domain name hijacking" by large organizations.
>
> Our second area of concern is the protection of privacy.  Efficient management of the Internet
> requires that a technical contact for a domain name be quickly and easily identifiable.  The same is
> not true of the personal information of an individual domain name registrant.  These data
> historically were collected for operational purposes, but recent serious abuse suggests that they
> should not be readily available in the aggregate.  Given that out of millions of existing
> registrations there were fewer than 1000 instances in which trademark owners invoked the NSI dispute
> policy last year, despite the advantages which that policy gives to registered trademarks, it
> appears that the DN/trademark problem may be surprisingly small.  While there is a very real problem
> of misuse of another's trademarks, this problem needs to be in balance with the legitimate privacy
> rights and desires of the potentially enormous number of ordinary citizens who may register domain
> names.
>
> In addition, a lack of privacy can have significant human rights implications, especially in
> countries with major human rights abuses.  While human rights groups fighting such abuses sometimes
> can be protected by having their domain name registered by a third party residing outside the
> country in question, such an option is not always available or may even subject the third party to
> undue personal risks.  Therefore, there must be some provisions for allowing the resolution of
> trademark claims regarding disputed domain names that are registered anonymously or indirectly for
> the real holder by a proxy.
>
> A third concern involves the scope of WIPO's proposals.  WIPO should not expand the jurisdiction of
> the proposed dispute resolution procedure to all types of intellectual property disputes related to
> domain names.  Rather, the focus should be limited to the primary issue: trademark claims relating
> to misbehavior by cyber-squatters who register domain names identical to marks in the hopes of
> selling them for a windfall profit.  Any ADR proposed by WIPO should be restricted to this class of
> problem, especially since we have very little experience as to how well cyber-arbitration will work
> in practice.
>
> A final concern relates to the ways in which WIPO's proposals might be abused by others to chill or
> suppress free speech and commercial expression.  National public policy draws a balance between the
> legitimate commercial rights of trademark holders and the freedom of expression of citizens.  Not
> every nation draws the same balance, but as this is sometimes a matter of fundamental constitutional
> or social policy, it would be inappropriate for WIPO to propose a single worldwide standard.  In
> particular, some nations choose to give very great protection to non-commercial expressive activity,
> even if it involves criticism of famous people or attacks on famous corporations or trademarks.  The
> Internet has been an important tool in supporting freedom of expression and robust debate around the
> globe.  Registration of domain names is both an expressive activity in itself and an important tool
> for persons who wish to communicate a message.  To the extent that the WIPO proposals do not create
> safe harbors and protections for all legal personal, political, and commercial expression, the
> Interim Report is insufficiently attentive to the basic human right of free speech and open
> communication.
>
> We support the recommendations made by Willis Ware in his letter dated 3/12/99, and strongly urge
> WIPO and the Panel of Experts to table the present draft report.  We believe that a new more narrow
> proposal should take into account the recommendations of Professor Michael Froomkin (dated 2/24/99,
> subsequently updated and posted at http://www.law.miami.edu/~amf dated 3/14/99), Professor Milton
> Mueller, the Domain Name Rights Coalition, and many others.  ACM and the Internet Society ask that
> this new proposal be circulated by WIPO for another round of public comment from the Internet
> community followed by another round of revisions prior to being sent to ICANN.
>
> ACM and the Internet Society would welcome the opportunity to work with you on a new proposal that
> preserves privacy, free speech, and open communication for personal, political, and commercial
> expression while providing a fair, equitable, and economically sound policy for the resolution of
> domain name disputes.
>
> Sincerely yours,
>
> Barbara Simons, Ph.D.
> ACM President
>
> Donald M. Heath
> President/CEO
> Internet Society