Original URL: http://www.theregister.co.uk/2007/03/28/icann_lisbon_intellectual_property/

Intellectual property debate heats up, as ICANN looks to the future

The future's better late than never

By Burke Hansen

Posted in Law, 28th March 2007 05:02 GMT

ICANN Lisbon The first day of the ICANN meetings in Lisbon had a certain predisposition to it. Lost luggage complaints, which oddly dovetailed with a certain ICANN-induced weariness, seemed to be more prevalent than concerns about the organization itself. A kind of internet industry bonding ritual had begun, along the lines of Monday morning at the water cooler.

The opening day speeches reinforced that feeling of familiarity. Everybody seemed to be getting to know each other again after an extended absence.

The second day had more of a feeling of sleeves being rolled up, as everyone involved broke off into groups of particular interest. One of the difficulties of this arrangement is that with so many worthwhile topics being discussed, and some of the sessions being all-day affairs, you need to make a decision early on about how to approach the day.

I decided to focus on the registrar and intellectual property angles, which have revolved around the issuance of new top level domains (TLDs), and the privacy debate surrounding the Whois database.

The arduous task of approving new TLDs has dogged ICANN for years. In what is essentially a kind of virtual land rush, ICANN has taken it upon itself to determine the who, what, where and when of entirely new classes of property rights.

Although the .xxx argument is the most famous, and has yet to be resolved (allegedly sometime this week), the problems created by this approach are really more complicated than the moralistic issues that so often surrounded that debate. In fact, the .travel/.aero debate of a few years ago proved as divisive if not more, due to the stubborn odyssee of Edward Hasbrouck, a travel writer, to determine why a relatively narrow industry group had received an entire TLD to the exclusion of all other stakeholders.

ICANN's bylaws require it to "operate to the maximum extent feasible in an open and transparent manner". Instead, following approval of .aero by ICANN's Board of Directors, the rules for .aero were drafted by ICANN staff in secret meetings with Société Internationale de Télécommunications Aéronautiques (SITA). These rules differ radically from the original proposal, in that only suppliers of travel services, not consumer advocates, are allowed to register .aero domain names. Consumers and travellers aren't welcome. Members of the "aviation media" can register .aero domain names, but only if they "promote" air transportation. No critics or muckrakers need apply.

The current process seems to be far more inclusive than the divisive process that had Hasbrouck hounding ICANN for years for information regarding the process that led to the approval of the .travel/.aero TLDs, but it still begs the question of just what kind of rights ICANN is granting, and why and how certain people or groups become excluded from obtaining those rights.

ICANN, as it states in its own literature, exists to promote the security and stability of the internet. Part of that responsibility consists of providing a coherent framework for the net itself, which may indeed include organizing the TLDs in a manner that is easily comprehensible to the public.

In fact, today's discussion in the intellectual property forum provided a nice example of how a more inclusive ICANN process ought to work. The sponsors of .asia have provided a very orderly procedure for ensuring that current trademark holders can maintain that trademark, essentially establishing a three-step procedure with current trademark users at the front of the line.

One participant in the discussion noted that in many jurisdictions the first to register a trademark takes precedence over anyone using a sufficiently similar mark that has not been registered, which could lead to problems in certain jurisdictions, Edmon Chung of .asia noted that it specifically intended that current users, whether located in Asia or not, retain their rights with a minimum of potential litigation. After all, the point is for people or companies actually to use the names, not to squat on them.

The nexus to Asia is sufficiently loose to enable almost anyone with an established trademark to register it through .asia - only one of the tech, admin, billing or registrant parties involved needs to be in Asia, which includes the Marshall Islands, an American protectorate. Thus, just about any American company will be able to qualify. Admittedly, geographical distinctions are easier to draw than substantive distinctions, as in the .travel/.aero domains, but again the openness of the process is what matters. Conflicts would be dealt with through public auction, though that raises the question of economic might versus legal right.

Whois

Changes to the Whois procedure have garnered even more headlines. As part of a larger debate between the US and Europe over privacy rights, which are generally more tightly protected in the EU than the US. The discussion group was weighted heavily in favor of the intellectual property lawyers, generally American, in attendance, which is not much of a surprise.

The Whois procedural changes under consideration concern just how much information about the registrant of a particular website should be made available to the public. Law enforcement and industry trade groups tend to weigh in on the same side of this issue, although it is not clear that their needs are the same. Law enforcement has always had access to certain databases unavailable to John Q. Public, and that could certainly be the case with the internet as well.

However, more than one individual complained that law enforcement typically won't act on phishing complaints, for example, unless all the relevant information is handed to them on a silver platter. The murkier private law enforcement community also has its fingers in this pie, although to what extent the private law enforcement community won't continue to utilize the extra-judicial methods it currently utilizes remained undiscussed. Expect to hear the industry buzzwords "trust" and "security" tossed around quite a bit in this debate, although it seems doubtful that Europeans will abandon settled law in their own countries so that American corporations can save a few bucks.

The current compromise involves doing away with the disastrous proxy registration system, in which for a fee registrars would register anonymous Whois information, and let registrants designate an contact agent instead.

Stacy Burnette, the director of contractual compliance, joined the meeting toward the end, and emphasized that ICANN understood the need to communicate more with the public when problems arise with a certain registrar. The Registerfly fiasco apparently has provoked some serious soul-searching on the part of ICANN, as she was talking about biannual compliance reports. An even better suggestion came up - why not post the actual audits on ICANN's website, so the public can be informed as to which registrars are dodgier or more careless than others?

In San Francisco, where this author lives, the restaurant industry raised hell when the city decided to post health inspector scores on the city website as well as in the restaurants themselves - and yet, the local restaurant scene continues to thrive, and the issue is moot.

Some kind of public tracking system is clearly in order here, and the public's right to know should take precedence over ICANN's squeamishness. Maybe it wouldn't fly with the current Registrar Accreditation Agreement (RAA), though no one at the meeting was quite sure, but while we're discussing revamping the RAA, throw that in there too. After all, ICANN has the imperial authority at the very least to choose not to renew an RAA - which would effectively put the registrar out of the domain registration business and probably get them to agree to public audits without a fight, as long as ICANN came at them with a little bit of sack.

That was the most useful proposal of the last two days.

Other issues were raised regarding the Internationalization of Domain Names (IDNs) and potential problems with generic trademarks (ie., Apple, Inc., and a .apple TLD), but these are the kinds of technical details that are relatively uncontroversial or uncommon.

ICANN uncontroversial? Never.®

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