<nettime> Re: DVD-CSS analysis + remarks

[t byfield <tbyfield@panix.com>]

pg@lokmail.net (Wed 12/29/99 at 06:35 PM -0500):

> >  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.

you're right that they're not under ICANN jurisdiction, but (a)
ICANN claims (n.b.: *claims*) that it has no jurisdiction at all,
and (b) the relationship between ICANN and ccTLD registrars is 
under heavy debate in ICANN's Government Advisory Committee (GAC). 
GAC's membership consists of representatives from various national
governments (iirc, about 75--out of ~250 ccTLDs) as well as from
WIPO and a few other odds and ends. since GAC meets behind closed
doors, it's hard to know exactly what's afoot in there, but ICANN
and GAC have certainly been kicking around various wasys to form-
alize the relationship between ICANN and the ccTLD registrars. 
ICANN has sought to extract very substantial fees from the ccTLDs
registrars, who are pretty skeptical: by and large, their want to
know what ICANN will give them in return for these fees. so, to
say that they're not under ICANN's jurisdiction doesn't really
describe what's going on, i think: it's a very open question. in
LA, when one GAC-originated proposal that had leaked was brought
up in an open question period, the response from the ICANN board--
and assorted other people involved in manufacturing ICANN (burr,
sims)--was intensely hostile, basically, 'people say all kinds of
crazy shit, that document is nonsense.' they were quite familiar
with it, though.

as for whether the ccTLD registrars are state-run monopolies, this
is a side issue, i think. some of the examples you cite, like
Tonic (the tongan registry) might as well be: eric gullichsen and
eric lyons were able to establish it because they knew the crown
prince of tonga, who's the majority shareholder, and the profits
flow to a state-run distance-learning institution--so it doesn't
really matter that Tonic is a US corp based in san francisco. 
Tonic has been quite successful *because of* this relationship,
but you can be sure that if the government of Nation X decides to
change whoever is acting as its registrar, it will be able to do
so. upshot: they're state-sanctioned monopolies in all but name.

> > 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".

i'm glad you filled these details in, because it's important for
people to know just how cozy the WIPO-ICANN relationship is--WIPO
was the first 'neutral' entity that ICANN accredited to 'resolve'
domain disputes--but calling what i said 'inaccurate' is just a
quibble. the point is that the 'intellectual property' lobbies
were *very* gung-ho about getting the Uniform Dispute Resolution
Policy (UDRP) in force. btw, 88% of the operating budget of WIPO
--a 'UN Special Agency' (like IMF, WTO, the World Bank, UNICEF, 
UNESCO, and dozens of others--derives from 'fees generated by 
services performed for the private sector.' put simply, WIPO is
a trade lobby operating under UN cover.

> (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)

it's even worse: the UDRP was passed by ICANN's self-appointed 
'interim' board only *days* before ICANN's 1-4 november meeting 
in LA, where ICANN's board was actually elected. when ellen rony
objected that ICANN should have waited for the elected board to
vote on the UDRP, ICANN's chairman of the board esther dyson 
responded that the result would have been the same anyway because 
'the new board members are in fact more representative of big 
moneyed interests than the original [i.e., interim] ones.'

but it's important not to read that criticism as placing much faith 
in the idea that ICANN's current board was 'elected.' the powerhouses 
on the self-appointed 'interim' board remain on the elected board. 
and only now, having passed the UDRP, has ICANN finally begun the 
slow process of establishing procedures that will eventually lead 
to representation on the board from an 'at large' membership--that 
is, people without an *institutional* economic or political interest 
in ICANN and what it does. and those procedures are already jiggered, 
imo: ICANN sent out a notice asking for 'expressions of interest' 
from people who want to be on the 'membership implementation task 
force.' however, ICANN went well out of its way to avoid saying that
those 'expressions of interest' were *applications*--to be decided 
by unnamed parties according to unannounced criteria. this kind of 
'process' is quite typical of ICANN's 'adhocratic' style to date, 
and it makes it very hard to trust the results: a group of people 
selected under dubious circumstances who draw up the procedures by
which nonaffiliated netizens will have access to representation on
ICANN's board at some unspecified time in the future.

> > 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.

they didn't really have any choice, short of acting in complete
anti-ICANN solidarity--not likely, considering the fact that
they're in competition with each other.

> 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).
 <...>

so far, i think we agree in spirit and even in substance, but
this is where i'll try to get off the boat as politely as i can.

while the issues that name.space raised were extremely prescient,
the situation has changed *dramatically* in the last few years.
and surely you'll agree that if name.space had won its early
suit against NSI, the situation now would be utterly different
from what it is; but name.space didn't win in those efforts, and
those losses--grotesquely unfair losses, imo--have played a part 
in defining the current situation.

there are *many* fronts on which people can oppose ICANN, not
just the ones that name.space articulated early on. and the main
point, to my mind, is to oppose ICANN--which may *or may not*
mean supporting name.space's efforts. it's crucial to find new
ways to address the problems *as they are now*. 

ICANN won't be beat by one group aligned under a single banner;
it can only be beat by a broad coalition of groups fighting it
for different reasons and with different goals. some opposition
will come from the ccTLD registrars, some from people concerned
about the use of domains as a single chokepoint to regulate the
resources available on the net, some from people who believe in 
heterogeneous DNS networks, some from people who oppose the 
specific commercial interests that ICANN represents, some from
people who are alienated by ICANN's procedures. there are *lots*
of people with *lots* of reasons for opposing ICANN, and it
makes no sense to assert primacy or priority at this point. the
'battle of seattle' against the WTO was an excellent model for
this kind of open but coordinated opposition: some will say
that what happened was good, others will say it was bad, but
it definitely changed the playing field. and that's what needs
to happen with ICANN.

cheers,
t

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