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Modest reform efforts mask tough issues in gTLD reform

ICANN serves up waffles at workshop

The smart choice: opportunity from uncertainty

ICANN 2007 Los Angeles ICANN offered a workshop today intended to clarify the latest proposed application process for acquiring new generic Top Level Domains (gTLDs) and to make the entire process more transparent. Unfortunately, the results were a disappointment, leaving as many contentious questions unanswered as answered.

ICANN tried to spin this positively, and although certain aspects of the proposal offer marked improvement in the process - particularly in regard to reducing the costs of the application process to allow more gTLDs in poorer countries - ICANN seems to have waffled on other important issues.

Attack of the killer IP constituency

"New gTLDs are all about increased choice for consumers," said Dr Paul Twomey, ICANN's president and CEO in an ICANN press release posted today. "The progress that has been made in creating a set of rules and guidelines for the introduction and assessment of new gTLDs is an endorsement that ICANN's bottom-up, consensus driven policy process is the right model for the job."

Well, maybe. It's hard to understand how ICANN's eagerness to placate the Intellectual Property Interests Constituency - a "constituency" composed entirely of paid industry lobbyists - constitutes any sort of "bottom up, consensus-driven policy process".

Intellectual property law has its origins in the promotion of the arts, sciences and commerce, which is rather different than giving industry everything it wants. If the proposal is approved by the board as drafted, which seems almost certain, ICANN will have completely capitulated on the crucial issue of whether or not current trademark law applies to gTLDs.

This massive handout of intellectual property where none before existed (and make no mistake, that is what's going on here) brings trademark rights into the hitherto untarnished space occupied by TLDs - those characters to the right of the "dot" that delineate the top level of internet space. Trademark law has always required either registration, use, or a mixture of both in a particular jurisdiction. This proposal radically alters this traditional requirement.

The question could be framed as such: should "Apple, Inc" be allowed to own a ".apple" TLD, rather than, say, some sort of apple industry trade group? Preventing a prospective group of apple growers from starting a new ".apple" domain space on the grounds that it would be be confusingly similar to Apple, Inc's trademark is a de facto transfer of the property rights vested in that domain space to Apple, Inc without any payment whatsoever by Apple for those property rights - the very definition of a handout. Whether or not a gTLD is "confusingly similar" to an existing trademark names - in which jurisdiction, exactly? - apparently will be determined by as yet undetermined algorithms.

It is, essentially, the granting of a universal property right for trademarks in the gTLD space, something without precedent in trademark law - never mind that apples and apple growers have been around for much longer than Apple, Inc, and have far more global recognition.

ICANN and content regulation

The other main disappointment concerns what the press release somewhat euphemistically described as "[gTLD strings that are] contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law".

For those new to ICANN, this refers to the ".xxx" controversy that just won't go away. In that controversy, ICANN reversed course on a gTLD that had previously been approved, leading many to suspect that right-wing Christians with close ties to the White House strong-armed the Department of Commerce to can the proposal - signed contract to the contrary be damned.

The latest attempt to diffuse that public mistake puts the onus on the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICEAFRD) to define what constitutes public morality. Worthy causes all, but a pretty hefty list of standards for an organization that claims it wants nothing to do with policy decisions.

The proposal does require that the gTLD be legal in the jurisdiction where proposed - an excellent idea - but rather than leaving it at that and letting adults decide what they want to read or see online, the proposal adds an extra, unnecessary layer to the process, which only confuses the issue.

If a person doesn't like Russian law, for example, he or she can choose not to visit Russia. Similarly, if someone doesn't like a particular part of cyberspace, that person can choose not to go there. The idea the internet should be regulated on the principle that people might accidentally stumble on something offensive is absolute nonsense - people stumble on offensive material everyday at magazine stands and bookstores. Tough luck, it's a free society.

This publication has long argued for a truly transparent process, in which simple rules, understandable by everyone across the wide spectrum of internet users, govern the approval process. This proposal, unfortunately, is only a modest step in that direction.

The entire presentation can be read here (pdf). ®

Burke Hansen, attorney at large, heads a San Francisco law office

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