<nettime> CPSR comments on NTIA Green Paper

[pgp@pgmedia.net (name.space)]

Before the
UNITED STATE DEPARTMENT OF COMMERCE
NATIONAL TELECOMMUNICATIONS AND
INFORMATION ADMINISTRATION
Washington, D.C. 20230

COMMENTS OF THE
COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY

        The Computer Professionals for Social Responsibility (CPSR)
<http://www.cpsr.org>, by their attorneys, respectfully submit these
comments on the "Green Paper"
<http://www.ntia.doc.gov/ntiahome/domainname/dnsdrft.htm> released by the
National Telecommunications and Information Administration (NTIA)
<http://www.ntia.doc.gov> regarding present and future systems for
registration and administration of Internet domain names.

INTRODUCTION AND SUMMARY

        NTIA has developed a serious and generally sensible review of
Domain Name System (DNS) administration that embraces the key principles
establishing a fully non-govern-mental, self-governance model for the
Internet.  CPSR is pleased that the U.S. government has recognized the need
to act -- as CPSR proposed -- as a catalyst in assisting the creation of
the new self-governance organizations that will be necessary to complete
the transition to a non-governmentally administered Internet and that can
continue the collaborative, consensus-driven processes that have
traditionally characterized the development of policy and standards by the
Internet community

        We strongly believe that the Green Paper's unequivocal endorsement
of registrar competition, via shared generic Top Level Domains (gTLDs), is
appropriate and in the best interests of all Internet users, developers and
service providers.  As detailed in our August 1997 comments in this
proceeding, CPSR -- a public interest alliance of information technology
professionals and others concerned about the impact of computer technology
on society, founded in 1981, with over 1,400 members and 22 chapters
nationwide -- shares the Green Paper's concern with avoiding changes in DNS
administration that could threaten the technical efficiency and stability
of the Internet.  As a result, we concur with the Green Paper's
recommendation that the DNS "root" servers must be coordinated, and that
"competing root systems" would represent a tragic departure from the
principle of universal accessibility that is inherent in the Internet.  As
CPSR commented previously:

[C]hanges to the current DNS model must reflect the twin goals of
maintaining Internet self-governance, thus minimizing government's
substantive role in Internet administration, while avoiding the
continuation of de facto DNS monopolies in the increasingly commercialized
Internet. . . .  The Internet domain name registration process should be
opened to compe-tition for all existing and newly created generic top-level
domains (gTLDs). . . . The Internet's "root" server administration
responsibilities should be coordinated and centralized in order to assure
reliability and scalability of the Internet.

        Consequently, the Green Paper's proposal for the creation of a
"private, not-for-profit corporation . . . to manage the coordinated
functions in a stable and open institutional framework" represents a model
for Internet administration that is orders of magnitude better than the
flawed Council of Registries (CORE) initiative supported by some
International quasi-governmental organizations (ITU, WIPO, OECD, etc.)
because such organizations should have no formal role in Internet
governance or domain name registration. We only caution that in allocating
Board of Directors seats on the "new corporation," special care must be
taken to ensure balanced and fully international representation by all
Internet stakeholders, including the substantial segment of non-commercial
Internet end users who are not reflected in the Internet Society or other
current Internet-related governance organizations.  CPSR agrees
wholeheartedly with the Green Paper's principle that the process of DNS
reform "should, as far as possible, reflect the bottom-up governance that
has characterized development of the Internet to date."

        At the same time, CPSR has a few significant reservations regarding
the Green Paper's specific proposals, especially its attempt at resolution
of what the Green Paper terms "the trademark dilemma."  We continue to
believe that domain registration should be separated from trademark issues.
Registrars should not be involved in trademark dispute resolution, but
rather should refer all trademark issues to appropriate national and
international judicial bodies.  Although in comparison to the CORE
initiative, the Green Paper's trademark procedures are relatively benign
(e.g., domain owner information, searchable database of second-level domain
registrants), the Green Paper nonetheless would mandate an "alternative
dispute resolution" process" for all registrars.  Along with a questionable
assertion of unilateral US jurisdiction to dictate -- if only in the short
run -- the pace of competition in gTLD creation and registration, which
CPSR also opposes, the Green Paper's foray into the quagmire of Internet
trademark issues is its greatest weakness.  In the absence of any technical
reasons to decide trademark issues or to set gTLD constraints, of which
CPSR is unaware, the US government should not, of its own authority,
attempt to impose such rules on the Internet prior to a consensus being
achieved in the new Internet self-governance corporation as to these
important matters.

A.      Trademarks

        Although the Green Paper agrees that creation of a "monolithic
trademark dispute resolution mechanism" is inappropriate, its proposed
mechanisms for "balancing" rights of domain holders and trademark owners
represent a clearly inappropriate intrusion of trademark concerns into DNS
administration. Much of the impetus for the CORE plan stemmed from
differences between trademark owners and others as to the relative rights,
and economic leverage, that NSI's own (and unilaterally imposed) dispute
resolution policies have engendered over the past several years.  The Green
Paper appropriately eschews the highly bureaucratic, centralized procedures
and rules developed by CORE to protect the commercial interests of
trademark owners.

        CPSR does not object to the provisions suggesting that all gTLD
registrars should maintain current, accurate records of each second-level
domain registrant, and that each registrant should certify that it is not
aware of an entity "with superior rights in the domain name."   These are
reasonable proposals for information collection that will assist in the
resolution of the tiny minority of domain name registrations that are
ultimately disputed.  Yet the Green Paper also proposes to require each
registrar to make available -- and agree to abide by -- "a readily
available and convenient dispute resolution process."  This mandatory
alternative dispute resolution (ADR) provision should be deleted.
Trademark owners, as commercial entities, have the legal and financial
responsibility to "police" use of their marks and, if necessary, take
enforcement action under specific national laws in the applicable country
of jurisdiction.  There is nothing about the Internet that warrants the
creation of a dispute resolution mechanism designed, as the Green Paper
apparently aspires, to lessen the burden on trademark owners of protecting
their intellectual property.  If the objective of the Green Paper is, on
the other hand, solely to "provide trademark holders with the same rights
they have in the physical world," then these ADR provisions are plainly
superfluous, as they provide intellectual property rights, and
"convenience," to trademark owners that are not enjoyed with respect to any
other medium of communication.

        In its August 1997 comments, CPSR recommended that gTLD registrars
should not intervene in disputes between trademark owners and domain
holders, but rather should refer disputes to the applicable national
courts.  We urged the US government to "assist this sensible result by
making clear its view that because registration of a domain name is not the
'use' of a trademark, the domain registration process cannot constitute
'contributory infringement' under US trademark law such that registries
would be exposed to legal liability for ignoring a request to 'take down' a
potentially infringing registration."  Consistent with a subsequent
decision by the United States Court of Appeals for the Ninth Circuit, the
Green Paper states that "the law provides no basis for holding that a
registrar's mere registration of a domain name . . . should expose it to
liability."  We applaud NTIA for this forthright statement, and strongly
suggest that there should be no additional procedures, rules or
requirements for domain name registrations involving potential conflicts
with commercial trademarks.

        The Green Paper asks for comment on two specific proposals
regarding trademarks.  First, whether registrars should be compelled to
provide for an accelerated dispute resolution timeframe, with suspension of
a disputed domain name registration in the interim.  Second, whether at the
time of domain name registration, registrants should be required to agree
to judicial jurisdiction "where the registry is domiciled, where the
registry database is maintained, or where the "A" root server is
maintained."  Consistent with the foregoing, CPSR believes that a mandatory
suspension and ADR deadline is inappropriate and unnecessary.  Moreover,
while we agree that clearer rules of Internet-based jurisdiction are needed
to deal with the new medium of cyberspace, whether registries should impose
jurisdictional conditions on gTLD domain registrations is an issue best
resolved, if at all, by means of an international, multilateral
treaty-level legal agreement, rather than the unilateral mandate of the US
government.

B.      Internet Self-Governance

        As noted, the Green Paper's proposal for creation of a private,
not-for-profit corporation (the new corporation) to manage coordinated
Internet functionalities, including the present IANA function of IP number
allocation, is a landmark development.  If implemented correctly, this
approach will help assure that the ongoing DNS administration will be
handled in an open, balanced and non-governmental manner, with full
participation by consumers and small commercial entities, in addition to
trademark owners.

        It is essential, however, that the new corporation is truly open
and free from conflicts of interest.  Accordingly, while CPSR agrees with
reservation of Board seats to regional IP number registries (ARIN, APNIC,
RIPE) and the IAB, we do not believe that the reservation of only one Board
seat for "an individual or entity engaged in non-commercial, not-for-profit
use of the Internet" is appropriate.  Internet "users" have, unfortunately,
for too long been synonymous with entities operating commercial Internet
activities, rather than the millions of individuals ("end users" in other
parlance) who actually use the Internet for communications.  CPSR urges
that both the Internet "membership association" contemplated by the Green
Paper, as well as the new corporation Board seats, have at least equal
representation by both Internet end users and commercial Internet
providers.  In other words, four of the seven Board seats allocated to a
"membership association (to be created) representing Internet users" should
be reserved for non-commercial, non-profit Internet users.  Moreover, Board
members should not be employees of registrars, registries or of any other
entity competing for commercial services in the domain name registration
market.

        CPSR concurs that the new corporation must "reflect changes in the
constituency of Internet stakeholders."  That means, we believe, that
governance of the new corporation must be formally vested in an
international Board, with full representation from all parts of the world.
Both in order to avoid the appearance of US hegemony, as well as to secure
the political support the Green Paper requires in the context of the global
Internet, CPSR believes that Board representation should also be reserved
for international representatives.  While these should not be government or
quasi-government representatives, the importance of internationally
balanced representation cannot be understated.

        The new corporation should be prepared to deal with disputes
between registrars and registries, but it should not be designing protocols
or participating in technical work now done by the IETF.  It should also
not use its number-assigning role to "pick winners" in opening of new
gTLDs.  In this regard, while CPSR agrees that in performing coordinated
Internet functions the new corporation will be acting "much like" a
standards-setting body (and with applicable legal liability if competitive
safeguards and open processes are not observed), it is vital to state
clearly that the new corporation will not be engaged in developing or
adopting Internet technical standards.  For instance, if technical
standards are required for the development of registry sharing or for root
server coordination, these should continue to be driven by the technical
members of IETF, rather than the new corporation.

C.      Registrars and Registries

        CPSR's basic principle, as outlined in its August 1997 comments, is
that DNS competition should be introduced in a way that does not jeopardize
the technical stability of the Internet.  Accordingly, we opposed the CORE
proposal because it did not directly deal with the importance of
coordination and/or centralization of the root server functions that are
essential to maintaining universal resolvability of all gTLDs on the
Internet.  CPSR also opposed "branded" (i.e., proprietary) gTLDs, and
believes that marketplace competition in the registration market will be
more than adequate -- as current trends already demonstrate -- to produce
innovation, efficiency and capital investment.

        The Green Paper's response is for the most part entirely consistent
with these views.   First, the Green Paper advocates centralization of root
server administration in the new corporation, but recognizes that if a
"system of authoritative roots" is coordinated and synchronized, there is
no technical need to retain a single "dot" server, and with it a continued
risk of catastrophic network failures.  Second, the Green Paper proposes
that all gTLDs, including ".com," shall be open to registrar competition on
a shared basis.  Third, the Green Paper proposes that a limited number
(five) of new gTLDs be established by September 30, 1998, as a transitional
measure, in order to avoid "destabilizing" the Internet.

        CPSR agrees with the first two of these proposals.  As to the
short-term creation of new gTLDs, we question whether the need for
short-run competition outweighs the potential cost -- in terms of legal
exposure, commercial disputes and the political constituency the Green
Paper will enjoy internationally -- of the US government unilaterally
dictating the opening of new gTLDs.  Not only are there a number of
existing entrepreneurs that are attempting to develop commercially viable
registries to compete with NSI, but, as CPSR observed, there is a serious
question whether the US government has the legal authority to mandate any
specific domain name registration processes for gTLDs in light of the
global,  supra-national nature of the Internet.  Moreover, except for the
technical complexity of shared registries, there does not appear to be any
serious technical reason why the number of new gTLDs needs to be restricted
in the short run.  Thus, the Green Paper's limitation of five new gTLDs is,
in some respects, designed more to protect trademark holders from the
difficulties of "policing a large number of top-level domains" than to
respond to any legitimate issues affecting the Internet's technical
stability.

        While CPSR agrees that NSI should be subject to real competition in
both registry and registration services as soon as is technically feasible,
the importance of a bottom-up process, based on valid technical
considerations, must take priority.  NTIA should therefore consider
whether, at least in the absence of broad international endorsement, it
would not be preferable for the US government to create the new
corporation, based on the principles of competition, openness and technical
stability, and leave it to the new corporation to determine whether, and if
so to what extent, limits on gTLD creation or introduction should be
imposed.  At the very least, the NTIA and the new corporation should avoid
selecting new gTLDs based on competing claims of business interests of
potential registrars.  Names like ".web," ".pers," ".mall," etc. have been
"claimed" by private entrepreneurs, and are therefore suspect.

        CPSR is also concerned that maintaining monopoly provision of
registries -- especially in the short run -- could have profoundly
anti-consumer consequences.  We believe that once new gTLDs are opened,
there will be an unprecedented level of demand for second-level domain
registrations.  If all of these users are "locked" into a single registry
(with attendant price gouging possibilities), without portability, because
registry services remain sole-sourced for each new gTLD, the advent of
registration competition will hardly have the benefits predicted.  We do
not necessarily believe that all gTLD registries must be operated on a
non-for-profit basis, but rather that coordination of gTLDs zone files is
required technically.  If there is a way to ensure portability among TLDs
and create market incentives in all DNS markets, that clearly is the
preferable approach.

CONCLUSION

        The Green Paper has done a notable job in deciphering the complex
legal, technical and policy questions surrounding DNS reform.  The
principles articulated in the Green Paper -- along with its bottom-up,
non-governmental approach to Internet governance -- are entirely
appropriate to the global, decentralized Internet.  The proposals can be
improved significantly, however, by (1) entirely separating DNS
administration and trademark issues; (2) creating more user-based and
international representation on the "new corporation;" and (3) avoiding
unilateral, US-
 imposed limits on new gTLDs while opening the DNS process to real
competition in both registry and registration services as soon as is
technically feasible

        Respectfully submitted,

        COMPUTER PROFESSIONALS FOR
        SOCIAL RESPONSIBILITY


        By: /s/ Glenn B. Manishin____________
Aki Namioka, President  Glenn B. Manishin
Harry Hochheiser        Blumenfeld & Cohen - Technology Law Group
Andy Oram       <http://www.technologylaw.com>
Computer Professionals for Social       1615 M Street, N.W., Suite 700
  Responsibility        Washington, D.C. 20036
<http://www.cpsr.org>   202.955.6300
P.O. Box 717
Palo Alto, CA 94302     Counsel for CPSR
650.322.3778

Dated: March 23, 1998


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