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ICANN adds domains names, stores up troubles

More TLDs will mean more problems, more money for lawyers

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Analysis The Internet Corporation for Assigned Names and Numbers, the administrator of the domain-name addressing system, has decided to increase the number of top-level domains (TLDs), but has not decided on how many there should be. At present there are just seven (.com, .edu, .gov, .int, .mil, .net, .org), apart from the two-letter country code domains.

In another fractious ICANN meeting just concluded in Yokohama, Chairwoman Esther Dyson commented that this should lead to "diversity amongst domain names" and "a reduction of scarcity" - but is this really likely to be true? Already, ambulance chasing brokers are offering "pre-registration" services for the new top-level domains, and it looks as though there will be a continuing bonanza for intellectual property lawyers unless ICANN smartens itself up and gets a decent set of domain-naming rules in place.

The procedure for issuing new TLDs will be that applications will be accepted from August, but they must be accompanied by a non-refundable $50,000 fee to cover "evaluation" costs, together with a business plan. There would then be a two-week public comment period at the beginning of October, a shortlist of TLD applicants announced by the ICANN board around 20 November, and a final selection by the end of the year. The board was vague about how many new names might be approved, with figures between three and ten being mentioned. Possible candidates include .banc, .museum, .sex, .travel. and .union.

The consumer angle

Paul Twomey who represented the US government, and Christopher Wilkinson for the European Commission, cautioned that if ICANN did not achieve a balance between a supply-industry association and a consumer association, it was inevitable that there would be governmental regulation to control domain names and protect consumers.

A major side-issue that haunts all ICANN activity is the vociferousness of critics who see ICANN as an industry-dominated body. This protest camp ranges from well-motivated people and organisations with something sensible to add to the debate about domain name governance to an anarchistic and opportunity-seeking fringe whose motives are suspect. ICANN has not helped itself in dealing with criticism since it operates rather secretively, and its board is clearly unhappy with the amount of scrutiny that it receives.

From its inception, it was intended that ICANN would balance industry and consumer opinion by having a board composed of nine stakeholders and nine at-large members. There has been much discussion as to how the at-large membership should be elected, and the consequent delay in achieving this has resulted in considerable hostility towards ICANN. Five at-large members are be elected later this year, but the board has fumbled a procedure to bring about fair nominations.

The groups lobbying ICANN divide roughly into established techie organisations like the ACM and Ralph Nader's Consumer Project on Technology; the American Civil Liberties Union and those concerned with the power issue; and regional groups, such as some 30 private-sector South Koreans who turned up in Yokohama.

No end to ticket touting

A genuine concern is the pressure brought to bear by rich organisations on mom-and-pop outfits to surrender their domain names. Of course the other side of this is that in some cases, the mom-and-pop domain names may innocently or otherwise infringe existing trademarks. It would be wrong to characterise the present situation as being just one of the big guys against the small guys: the big guys are fighting each other too, and often do not much like the decisions from the domain-name arbitration process. ICANN is currently monitoring the situation, and expects to report in November after the scheme has been in existence for about a year. Not many people feel sorry for cybersquatters losing the right to a domain name, but the issue needs to be faced: should there be a legitimate trade in domain names? Some think so, others do not, but the facts of life are that just are there are ticket touts, so it will be all-but-impossible to draw lines to stop some degree of domain-name trading.

A parallel political issue is that Americans are finding that might is not always right, and that international negotiations require compromise, dealing with self-important bureaucrats, and a great deal more time than would be the case in resolving domestic procedures.

It is inevitable that there will be a much litigation over domain names because of fundamental differences as to how trademarks are obtained and the sloppiness of the rules that allow protective domain names to be registered. Trademark owners are not too keen on the general idea of TLD expansion as they will inevitably want to register additional protective names, but increasing the number of TLDs inevitably will enrich the intellectual property lawyers.

What has not been done, and what needs immediate corrective action, is the enforcement of the correct use of existing domains - for example preventing for-profit organisations registering .org for defensive purposes, or requiring non-commercial US registrants to use .us. A great deal of aggravation could be also avoided by switching all existing .com porn sites to .xxx or whatever.

The time has also come to deal with the inadequate funding of ICANN. When it was set up, it was denied a small part of the registration fees for new domains and renewals, but this should now be reconsidered. Much of the criticism understandably levelled at ICANN would diminish with proper funding. It certainly doesn't help that ICANN's server and pipe seriously need upgrading to cope with the traffic.

ICANN meetings bring out a little of the best and a great deal of the worst in the more active players in the wired world. Adding more TLDs before tidying up the present situation with a tough and enforced set of rules for domain name registration is very undesirable. ®

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