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
>