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Internet Governance - Domain Names
The Domain Name System
Fisher and Zittrain
Z: Talks of professor who surmised that it was silly to talk of cyberlaw – it was self-identifying as not necessary because there was no need for a “special” set of laws – merely apply laws of crime, property and torts as they do in the real world.
But here is focus on Domain names
Covers brief history of why the Internet was developed – connecting multiple machines together.
Dave Clark – Senior Researcher, MIT LCS –
Started with 12 people in a room, added more, got larger, changed its name 4 times – strategy to keep things private.
These were folks that were “bored with their day jobs” and decided to build a network (course encouragement from the defense department helped).
Z covers how this group of folks managed consensus (Zittrain is a great story teller).
Brief history of RFC process
With emphasis that RFC was the “beginning of a dialog and not an assertion of control.” (Perhaps state governments, e.g. GTA, should operate in such fashion)
Domain name system was more flexible than numbering (or pure number reference)…
1984 saw creation of new DNS
Jon Postel ran the system for a while
1993 – Decided to stop running the lists – went to NSF – solution was for Network Solutions to manage the registrations for com, net, and org.
But, NSI started making lots of money. Which, in Internet theology, is evil. NSF started charging users for domain names (like $70 per 2 years). Now the business makes tens of millions charging you for names to recover the cost of billing you.
Expand the namespace?
Corporations discover cybersquatting… (McD couldn’t get McDonalds.com)
Which leads to:
- Mop I – legal intervention against domain name holders
(Fisher now speaks)
DNS was handled on a first-come, first-served basis. But this gave rise to
- Types of DNS problems
- Cybersquatting
- Joshua Quittner registered ‘mcdonalds.com’ and others registered names corresponding to trademarks of major corporations
- Typosquatting
- Register a close variant of commonly typed domain name
- Conflicts between competitors
- Kaplan.com – registered by Princeton Review
- Conflicts between noncompetitors
- Howard Johnson registers “howardjohnson.com”
- Retailers
- Weber.com and a retailer had webergrills.com (Weber didn’t appreciate that)
- Commercial vs. non-commercial users.
- Fan sites
- Parody
- First response – Trademark Law
- Types of infringement
- Identity marks on competitive products
- Similar marks on competitive products
- Similar marks on non-competitive product
- Core questions is there a
- Likelihood of confusion
- Likeliehood of being misled
- Post sale confusion?
- Initial interest confusion
- Dilution
- No confusion
- Defendant has eroded power of the mark
- By blurring association or
- Tarnishing it
- Trademark infringement requires
- Use in commerce
- Consumer confusion
- Dilution only applies to famous marks
- Judicial proceedings are slow and expensive
- So – this pursuit was not immediately satisfactory in resolving dns disputes
Now back to Jonathan Z.
- Mop II : political intervention against the architects of the domain name system
o ICANN
o Jon Pastel had to find way to resolve disputes and be able to add names.
o So, he convened an ad hoc committee that created the gTLD-MoU
o But it died on the vine…
o Pastel had a fight with NSI over root – so, in come Dept. of Commerce led by Ira Magaziner to create a solution.
- Dispute Resolution – UDRP
- Forbids abuse of registrations
- E.g. identical or similar to trademark so registered
- Holder of name has no rights or legitimate interests
- Has been registered in bad faith
- Even if bad faith – defendant can plead legitimate interests
- By using the name to offer bona fide good or service
- Defendant was commonly known by the name
- Legitimate, noncommercial or fair use of the DN without intent to misleadingly divert or tarnish
- Enforcement is contractual based agreement with these ICANN principles
- Procedure
- Complainant picks forum
- Respondents have 20 days to respond
- No additional submissions permitted
- Decision within 14 days
- Respondents default 50% of the time
- Remedies
- Cancellation of dns
- Transfer DN to complainant
- As of May 9377 proceedings
- Rates of filing are declining
- Most of the DNs were registered during early 200
- WIPO is most popular provider
- Anti-cybersquatting consumer protection act
- TM owners have civil cause of action
- ACPA factors for deciding
- Biggest difference between UDRP and ACPA is remedy process
- Statutory damages under ACPA
- In Rem Jurisdiction – can bring suit against the name if defendant can’t be identified.
- Simple clear cut problems like
- Cybersquatting
- Typo squatting
- Consumer confusion
- Get resolved with UDRP and ACPA
- Trademark defense goes tradition route
- But, ACPA and UDRP have extended their bounds – since complainant picks the forum
- Modern regime dealing with names are complex, unpredictable, trademark owners have too much power
- Excessive impediments to free speech
- Evaluating the clean up
- Why do we care?
- Story is harder to tell – seems to be just so much history
- Discussion of ICANN
- Focused on what didn’t matter (the org of ICANN)
- But who cares where the deck chairs are on the canoe?
- Why – well they acted like a government
- No identity without a domain name
- Who is on the other side of the contract? Who granteth and taketh away?”
- The historical accident answer
- How upset would you be if Google de-listed your site?
- A written complaint based on DMCA to Google could get you de-listed from their search.
- Are MS creates identifiers tying your docs to you for life?
- Your ISP cuts you off for something they don’t approve of?
- ICANN says your dn offends someones rights – so you have to get one.
- So, what of Internet governance…
- Does it matter?
- Should it?
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