New book on the Regulation of Domain Names

Abstract from my book: "The Current State of Domain Name Regulation: domain names as second-class citizens in a mark-dominated world", available now by Routledge - http://www.routledge.com/books/details/9780415477765/

Questions concerning the legality of domain names have never received the kind of attention they deserved; in all truth, the attention has perpetually focused on the harm trademark owners are enduring through the use of domain names. Early domain name regulation indicates that Internet policies highlighted the threat – potential and actual – domain names were posing to trademarks and any amendments on such policies proceeded on the basis that trademark protection should be more robust and rigorous. The promulgation of ICANN’s UDRP is one such example; it was justified on the face of lack of trademark protection on the Internet and was substantiated on the way domain names impair the value of trademarks. To the present day, domain name policies and trademark regulations are still developed, structured and arranged using justifications of trademark protection.

I strongly refute this assertion. Trademark protection on the Internet is vital; it is equally vital, however, to rationalize the pragmatic considerations of this protection. We have spent time and resources debating and streamlining on the impact of cybersquatting on trademark law, completely disregarding how trademark lobbying has manipulated the authority of Internet institutions (ICANN) and has pressured for policies (UDRP and IRT) seeking to expand the conceptual basis of trademark law. Ten years ago we missed the window of opportunity to formalize the legal nature of domain names and, consequently, strike a balance between the competing interests of trademark owners and domain name registrants.

My forthcoming book – “The Current State of Domain Name Regulation: Domain Names as Second Class Citizens in a Mark-Dominated World” – re-opens the discussion on the state of domain name regulation, questioning the legitimacy of its intellectual, institutional and moral structure. The timing for this kind of discussion could not have been more appropriate as ICANN is venturing into new policy with the launch of its new gTLDs programme and intellectual property lobbying is – once again – seeking to direct policy-makers into areas that stretch the philosophical basis of trademark law.

In the book I promote the thesis that the determination and recognition of domain names as autonomous, sui generis, rights is intellectually imperative, because it is through this intellectual conjecture that we will end in modifying the current status quo. Using the theory of property as my starting point, I discuss issues of ownership (dominium) and sovereignty (imperium). My argument centres on the concept of the ‘bundle of rights’ and how it has evolved to denote ownership over tangible and intangible assets; it does not seek to dispute the theory of the ‘bundle of rights’, rather I accept it as property’s contemporary variant. For me, the metamorphosis of property law is occurring at regular intervals and, currently, it encompasses both tangible and intangible assets that can be associated with such a ‘bundle’. This description, however, can have a negative impact on property – the clearest example being trademark rights - one that Morris Cohen identified in his visionary 1927 article when discussing the dangers of the concepts of dominium and imperium being conceptually blurred.

With this understanding of property in mind, I then proceed to display trademarks and domain names. I discuss the systematic effort of the trademark community to canonize trademark protection (Progressives movement) and demonstrate the importance of trademarks as property commodities. However, I also acknowledge that attributing property characteristics does not grant immunity to trademarks, the same way that property does not grant immunity to any right. Trademark law operates under limitations and restrictions (for instance, territoriality, genericness and free speech), which ensure the smooth function of the market and allow entrepreneurship to flourish.

On the contrary, such needs are not preserved through the presence of trademarks on the Internet. There is a great amount of conceptual vagueness and legal presupposition on the kind of protection trademarks should receive in the domain name space. Such an attitude ignores emerging questions concerning the nature of domain names, their relationship with trademarks and their online importance. The truth is that these questions are so complex that American courts are split and seem unwilling to create a blanket rule on how law should treat domain names.

In such a vague environment, the UDRP plays a major role and contributes significantly to this legal cul de sac. Although politics within ICANN have compromised attempts to produce a fair process, the UDRP was meant to be a harmless policy, with a specific subject matter and limited to cover only a very small fraction of trademark infringement. At the time, no one anticipated the UDRP to transcend traditional trademark law and become an online establishment. Nowadays and with a massive body of case law, which shows signs of exponential growth, ICANN’s policy is considered as the dominant platform for trademark vs. domain name resolution.

The UDRP, however, is far from an authoritative statute; its genesis was based on illegitimate grounds, its procedures are substantially flawed and unfair, it restricts the rights of domain name registrants and it is crowded with examples of inconsistent and biased decisions. Its subject matter has been extended to cover almost every trademark issue that occurs on the Internet, disrespecting the traditional and long-standing principles of trademark law, often granting unsanctioned international protection to trademark owners, suppressing free speech and disintegrating the legal rights of domain name registrants. in short, trademark interests have managed to excommunicate domain name registrants and entrepreneurs.

This degree of substantial and procedural unfairness poses an ethical problem for domain name regulation. My thesis is to build a framework for domain names– the “domain name polis” as I call it – where fundamental principles of justice, like fairness, equality and lawfulness, hold a prominent position and direct any amendments on the Policy towards respecting and reflecting these ethical ideals.

The latest proposal by ICANN’s Implementation Recommendation Team (IRT) makes the creation of this framework even more important. Suggesting policy that re-defines the conceptual parameters of trademark law, the IRT advocates the success of the UDRP, does not recognize any of the intellectual legal issues and consciously dismisses the unfairness that is taking place.

It is, therefore, important for scholars and intellectuals to reopen the discussion on the conceptual boundaries of trademark law, revisit its limitations and parameters and refine the state of domain name regulation.

STatement on the ICANN NCUC's Charter Proposal

Wednesday, July 22, 2009

Individual Statement on ICANN NCUC’s Charter Proposal

Dear ICANN,

It is with great disappointment to see the ICANN Board suggesting a structure for the Non-Commercial Users Constituency (NCUC), which is a result of top-down rather than bottom-up coordination. I am also dismayed by the fact that NCUC was the only constituency having been asked to amend its charter so as all other constituencies within ICANN did not feel threatened by the support NCUC has been receiving over the years. Why else would you ask NCUC to amend a charter that has been signed and supported by approximately 80 organizations and individual users across the five regions of the world?

The new model you have suggested is highly problematic and you know it. It is as if ICANN wishes to create within NCUC – the only non-commercial constituency within ICANN able to preserve human rights and non-commercial interests – an internal conflict, which will, subsequently, disunite its members. The strength of the NCUC is that, despite the fact that sometimes we may share different priorities and approaches, in essence, we – as one, conjoined unit, advocate and support the same philosophy: the protection of non-commercial interests on the Internet. We are the civil society in ICANN and our job is to promote the needs of individual users, as expressed by themselves and their representatives. What we all share in common in NCUC is that we want to balance the influence of commercial interests within ICANN and engage in an active dialogue with the other constituencies. We want to find the best possible solutions for the Chinese blogger who fights for his voice to be heard, the child who is daily exposed to various illegal Internet activities, the parents who are concerned about their children – we are here to talk about all those people who should be our first priority – the simple Internet user. The charter we originally proposed would ensure that all voices within the NCUC would be heard; our charter promoted transparency and dialogue; it sought to bring together than distance our philosophies – isn’t that what democracy is all about?

You have to understand that our vision for NCUC is not driven by commercial interests and monies. We have tried to come up with the most democratic solution that will represent and respect the views of all parties concerned. And, I believe we have achieved it. Look at the support that our charter has received – you cannot possibly overlook that. We are reasonable and our proposals are equally reasonable. The fact that they do not conform to other interest groups within ICANN is unfortunate but, at the same time, it is not a legitimate justification for rejecting and re-writing our proposed charter.

I strongly urge you to re-consider the benefits of NCUC’s proposal. Rejecting our proposal will result in transmogrifying a constituency, currently operating under democratic and just procedures, into a body, where lobbying will proliferate. The way you have envisioned NCUC, we will have to spend all our efforts in political manoeuvring rather than in tackling contentious and fundamental issues that are of great concern to all of us. We can really help you, if you let NCUC and its members continue to do their jobs with the same passion and principles.

Thank you.

Sincerely Yours,

Dr. Konstantinos Komaitis,

University of Strathclyde (Law School),

Member of NCUC.

Internet Users Are Being Threatened: The IRT Meeting in London

I’ve just returned from ICANN's new gTLD meeting in London, where the Implementation Recommendation Team (IRT) presented its skewed vision of protection mechanisms for new gTLDs. London was the second stop of a consultation process, which started in New York and will finish in Abu Dhabi in the beginning of August (http://www.icann.org/en/topics/new-gtlds/consultation-outreach-en.htm). The idea behind these consultations, which are open to every interested party, is to give the opportunity to the IRT team to present its recommendations and receive comments. But, in reality, things are far from simple.

The report - both procedurally and substantively - has a lot of problems and legitimizing it will be a difficult task (even for ICANN). Taking into consideration that the composition of the IRT consists mainly of lawyers of big corporations (Time Warner, Richemont), the report will inevitably be biased towards trademark interests. And, it is. Hearing the IRT team talking about the report, there were times that I almost believed they are fighting a larger cause. Their language was careful, their wording well-articulated and they had the ability to answer almost every question. This to me meant only one thing: if one is not familiar with what has been happening over the past ten years, one could easily support the report.

Presumably, this was a new strategy. After a tough New York meeting two days earlier, where many voices attacked both the report and the IRT team, in the London meeting you could see that they have learned their lesson. Their presentations finished with the concluding remarks that the report does not reflect ICANN and is not meant to be a solution (rather it seeks to open the discussion); they often repeated that the team was not given enough time to prepare its recommendations and submit its findings. We all realized that after New York the team was trying to tone things down a bit.

At the same time, however, the IRT team did not back off from its main argument that trademark interests should be of primary concern with the introduction of new gTLDs. Sentence after sentence they were arguing how much trademark owners suffer from bad registrants. I don't think they acknowledged at all that not all registrants are bad. I felt that the team used the most extreme of examples to convince the public that the IRT report is a good piece of policy that needs to be implemented.

And, to a certain extent, their plan did actually work. For example, if you are a parent and you hear that there are domain names promoting child pornography, of course you are going to applaud their work. But, no one really told these people that these constitute criminal activities and can be dealt in other forums; no one really said that trademark owners are not concerned about child pornography, but, in reality, they want to control words, phrases, terms and any linguistic activity that resembles their mark on the Internet; no one really mentioned that many trademark owners suppress free speech on the basis that the domain name is 'harming' their trademark.

Finally, after the long presentation by the IRT, the community was given opportunity to comment. I reiterated NCUC’s position that the IRT Recommendations are flawed and should not be implemented. There were also some excellent comments heard from Paul Keating (trademark lawyer) and Richard Tindal (from the well-known registrar, eNom) on the problems of the IRT report and its biased character.

One of the things that I realized is that we really need to inform the simple Internet user, the registrant, anywhere in the world, about what is happening and what the IRT team is trying to push forward. We need to make them see how they will be affected by this trademark invasion and how the DNS will be in jeopardy of losing its all-inclusive character and become a space reserved for trademark rights.

ICANN does Paris (part une)

Dear "What else is there" bloggers...

This week in Paris is all about ICANN and the discussion have been as controversial as always. ICANN talks legitimacy and transparency, its actions say different and participants try to salvage the remainings of ICANN's recommendations. One issue that has generated a fair amount of controversy has been the recent Westlake Report concerning the role and structure of the At-Large Advisory Committee (ALAC).

Historically, the role of ALAC has been in place to serve two purposes:

(i) to provide an opportunity to individual Internet users for participation in ICANN's activities; and,

(ii) to be a vehicle for ICANN's accountability to the Internet community in accordance with its core values and its bottom-up, consensus-based way of operating.

The aim of the report focused on whether ALAC should exist in ICANN and, if so, whether there are any changes that are required within its structure. The Westlake Report concluded the following:

1. ALAC should continue to contribute actively to ICANN's policy development processes;

2. ICANN's outreach activities must be made consistently relevant to the needs of individual Internet users throughout the world; and

3. ALAC must ensure that it is seen within ICANN as being a valuable component of the total structure.

The report is highly flawed and it does not reflect the organizational problems that are inherent in ICANN. It starts from the wrong premise that ICANN is involved or should be for that matter in policy making and from this perception it seeks to identify the role of ALAC within its structure. Moreover, the report still denies any voting ability for ALAC in ICANN's board, something that lies at the core of individual users' misrepresentation in ICANN. Another issues with reading the report is that the language used seems to be placing the burden of effort to ALAC to ensure that they maintain a significant role within ICANN. The report recognizes that the steps that ICANN has taken thus far are sufficient and that there is a noticeable progress of support that ICANN has provided ALAC. This is not really the case as ICANN has not really substantially changed any of its charters to acknowledge more rights to constituencies such ALAC that merely represent everyday users.

At the same time, Westlake consultants were not able to convince the participants on the Monday session about the conclusions of their report. On the question whether they have considered the prospect of end users having voting powers within the ICANN board, the response was "Now, our review was a review of the At-Large Advisory Committee. Individual Internet users, the question of whether they should vote members of the board, we believe, in fact, bypassed our review, was beyond the scope of our review of the At-Large Advisory Committee". This answer implies that this issue was not even considered and, once again, it proves that even independent reports seem to be not so independent after all and are merely serving ICANN's needs.

Finally, although the report identifies that RALOs do not really correspond to the global population of Internet users and that the Asia-Pacific region is misrepresented, still it failed to mention the implication for African countries and the lack of support that RALOs currently receive from ICANN. 

That is what has been happening in only one of the sessions of the ICANN meeting. The future now of the Westlake report rests on ICANN's board, which I do not see changing its position to offer more rights to individual users or ALAC for that matter. The conclusions are yours.

To be continued.....