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ICANN San Juan 2007 The fight over trademark rights got a welcome rematch last week, as the "free expression" contingency took the stage.

Tuesday's intellectual property constituency (IPC) was dominated by American trademark attorneys, and an opposing group of attorneys and assorted other interested parties hit the ground running on Wednesday. The buzz words here are "core neutrality", a concept that basically advocates root zone content neutrality at the top level domain (TLD) approval level. The scars of the .xxx fiasco run deep, apparently.

As board member Milton Mueller noted, the basic argument could be phrased thus: ICANN has a purely technical mandate, somewhat analogous to that of a public utility, and therefore should only deny TLD applications that clearly disturb the stability of the root zone itself. If governments want to prohibit their citizens from accessing certain information, the argument goes, they can take responsibility for it themselves via standard legislative procedures or international treaties, rather than through some back room deal at ICANN without any public input or accountability. Sounds fair enough, right?

Well, not for everyone.

Continental Europeans in particular seem to have a peculiar faith that some noble bureaucracy at ICANN - should it relocate to Brussels? - will make the correct choices for the worldwide internet community. The argument from that side of the aisle generally went along the lines of, we can do it the easy way through ICANN, or let individual countries take control and they'll do it the hard way. Soft censorship beats hard censorship.

What about .jihad, they say? What about .gay? Well, what about .xxx?

None of those - or even grotesquely offensive top level domain names - are prohibited at a secondary domain level, or even a content level, so what's the big deal? In a welcome age of TLD proliferation, why is second tier domain blasphemy OK, but the TLD kind is out of the question?

Board member Milton Mueller also noted that there has never been any form of global regime for media content - haven't needed it in the past, and there's really no reason to start now. After all, where's the mandate for that in ICANN's bylaws?

The .xxx experience clearly has marked ICANN's thinking on this issue - although chairman of the board Vint Cerf told me political pressures had nothing to do with rejecting the .xxx TLD, although someone else closely involved laughed at the idea that pressures from the government affairs advisory council (GAC) had nothing to do with the ultimate rejection of a TLD that had met the financial and technical requirements and had already been informally approved. The litigation in that case is still working its way through the court system.

Perhaps the most sensible proposal for an approval process that is essentially content neutral but understanding that certain things might really be beyond the pale came from former ICANN board member Michael Palage, who suggested a requirement that any TLD approved be required to be lawful in at least one international jurisdiction. Not necessarily formally government sponsored, but at least government approved and legal in one place on the planet, thereby preventing the possibility of an entire TLD being shut down and its board members thrown in the brig. It would also be an informal acknowledgment of the true diversity of jurisdictions touched by the internet and ICANN's work.

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