<nettime> Re: DVD-CSS analysis + remarks

[Paul Garrin <pg@lokmail.net>]

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t byfield wrote:

[...]

> but the 'intellectual property'
>  lobbies aren't about to call it quits that fast, so it's worth
>  thinking about new mechanisms for enforcing rulings across bor-
>  ders. one obvious mechanism is the ability to shut down access
>  to any domain that fails to comply with a court order. this is
>  what ICANN's 'uniform dispute resolution policy' does, because
>  it's not limited to domain/trademark issues: it includes vague,
>  open-ended language about suspending a domain used for any 'il-
>  legal' purpose. and that doesn't merely mean breaking an exist-
>  ing rule--it can mean not complying with an interim/ad hoc rul-
>  ing like the order in the Etoys/etoy case. ICANN has two major
>  groups of domain registrars to deal with, and they're very dif-
>  ferent. on the one hand, there are the commercial/'competitive'
>  registrars that handle global top-level domains ('gTLDs'); any
>  gTLD registrar that disregards ICANN's 'uniform dispute resolu-
>  tion policy' can have its accreditation yanked and lose access
>  to the registration database. on the other hand, there are the
>  registrars that handle country-code domains (ccTLDs); it'll be
>  much harder for ICANN to control them, because they tend to be
>  state monopolies.

The ccTLDs are not under ICANN jurisdiction, and are not for the
most part state-run monopolies.  In fact, several major "legitimate"
countries such as Canada and Australia have their CA. and AU.
TLDs operated by private companies, monopolies as they may be,
which have no direct affiliation with the governments of those
countries.  There are several "commercial" ccTLDs such as TO.
(Tonga) CC. (Cocos-Keeling Islands) MD. (Moldova) NU. (Niue)
and others, which are run by private companies and function as
generic TLDs with no relation or semantics having to do with the
countries that the ISO3166 codes are assigned to.

> the 'intellectual property' lobbies were, of
>  course, very supportive of ICANN's efforts to pass this policy,
>  for obvious reasons.

This is inaccurate.  WIPO (World Intellectual Property Organization)
published their report "The Management of Internet Names and Addresses:
Intellectual Property Issues" on April 30, 1999.  This publication
was the blueprint for the UDRP (Uniform Dispute Resolution Policy).
WIPO then lobbied all the accredited and prospective registrars
(Name.Space included) to attend their "seminars" to "discuss" their
concepts behind the UDRP.  Meetings were held in Washington, D.C.
on July 27, 1999 allegedly to "help develop a policy for disputes
arising from abusive domain name registrations".
(Name.Space did not endorse WIPO's proposal for a UDRP).  After
a "unanimous adoption" of the WIPO proposal at their DC meeting,
attended by Network Solutions, Register.com, AOL, setting the
stage for ICANN's rubberstamp of the UDRP at their meeting in
California in November, 1999. (see http://wipo2.wipo.int)


> anyway, now that these enforcement mechan-
>  isms are in place, the kind of actions that we've witnessed in
>  the past few weeks--Etoys/etoy, Leonardo and now this--will be-
>  come *much* more common.

True, with regards to domains registered in COM., ORG. and NET.
since the registrars all signed the agreements, accepting these
policies and consenting to governance by ICANN.

There is an opportunity in the realm of new TLDs to avoid ICANN
jurisdiction, provided that the legal action by Name.Space against
NSI and the US Government is successful.  The issues of rights of
access (to the root) and freedom of speech (choice of TLDs) are
the key points of that action. (http://namespace.org/law).

While it is true that many freedoms have been negotiated away
by commercial contracts (ICANN registrar contract/WIPO-UDRP)
in three legacy TLDs (com., org., net.)  this need not extend
to the rest of the internet's namespace.  Absent any express
regulatory powers (of which there are none granted to ICANN)
there is nothing preventing independent operation of DNS roots
and TLDs outside of the ICANN's reach, just as the ccTLDs operate
autonomously and with varying policies.  The UDRP and other
policies, such as the *mandatory database escrow* threaten
freedom of speech and privacy only if companies and organizations
agree to be subjected to those terms.  It is essential to keep
the new TLDs separate from ICANN control, and this can happen
only through successful action in the Name.Space legal action,
to win the right of access to the root on both antitrust and
First Amendment grounds.  ICANN is now discussing the addition
of new TLDs, under it's control (I have been involved in the
working group tasked with coming up with recommendations on
how to do this).  The process is filled with paid IP lobbyists
whose goal is to kill any prospects of new TLDs, and to be
sure that draconian, pro trademark policies are in effect in
any event.

> some will be handled very publicly in
>  order to make a point; others will be handled very quietly, be-
>  cause the main goal is just to solve a specific 'problem.' for
>  example, the first case filed under the ICANN policy was given
>  to the World Intellectual Property Organization (WIPO) for 'ar-
>  bitration,' because WIPO was the first 'dispute resolution pro-
>  vider' accredited by ICANN. under the rules that ICANN imposed
>  on WIPO, WIPO is not allowed to reveal *any* information about
>  the dispute; given how pwerful etoy's public campaign has been,
>  it's no mystery why the 'intellectual property' lobbies wanted
>  these disputes to be settled in secret. (WIPO has said it'd be
>  happy to release basic details about the disputes.) so, please
>  think about whether you want to see domain names turned into a
>  'single chokepoint' for regulating resources on the net; or if
>  you don't want that, think about what you can do to stop it in
>  its tracks. *it is happening now* and *it will continue unless
>  people start organizing against it*. cheers, t]
> 

There are several ways in which to approach this.  One way, which
has it's downsides, is to participate in the public comments of the
DNSO (Domain Name Supporting Organization) http://www.dnso.org

Read the proposed policy papers from working groups B and C
(WG-B and WG-C).  Public comments must be posted by January 10, 2000.
The favored compromise proposal of WG-C is Professor Mueller's paper.

The downside of favoring any of the proposals lies in recognizing
ICANN as the authority, which is still not firmly established, despite
the intese funding and PR, and the blessing of the US Department of
Commerce.  ICANN is not officially recognized by any treaty organization,
and only seeks to manufacture consensus and manage perception much in
the same way that the IAHC attempted to do in 1997, and failed.
The interesting fact is, that the ICANN and the IAHC are essentially
the SAME PLAYERS with a different name!  The difference is that
ICANN got the blessing of the US DoC...but that still does not
give them any express powers--only Congress can grant that, or
an international treaty--neither of which has happened.  ICANN
can only govern by CONSENT (contractual agreements).  So far,
many commercial companies were willing to sell out your freedoms
of expression, access and privacy to make a quick buck.
(Name.Space has not signed anything at this time).

Another approach is to support the independent TLD operators,
including Name.Space, by switching your DNS and by registering
in the emerging TLD space, and by publicly advocating DNS
independence.  The only way to guarantee freedom of access and
expression is to keep ICANN from controling new TLDs, while
making sure that they become globally recognized one way or the
other.  Invest in your shares for freedom....register with
Name.Space...or at least switch your DNS to resolve new TLDs
(http://namespace.org/switch)

NSI still controls the root, and will do so at least until
2003 (or 2005, I don't recall...).  It is unlikely that ICANN
will take over from there since they lack the technical infrastructure
to handle the operation of the root.  It is more likely that the
management of the root will be outsourced to a contractor by
bid.  In any event, the antitrust laws of access to the "essential
facility" on a non-discriminatory basis still applies.


Name.Space has invested over 200,000$ in legal fees to gain
the rights of access to the root and to protect free speech
from opression by corporations and government, and hundreds
of thousands of $$ more to develop an infrastructure and
pay programmers to develop systems.  Our goal is to be
totally member-supported and to avoid the sellout that would
cause it to lose control to commercial interests, in order
to preserve the integrity of the mission to establish a
safe haven for equal access, free speech and privacy.
You can all have a stake in this if you so decide.


- --Paul Garrin

p.s.

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LokMail is a new service developed by INW/SWMH in cooperation
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