[ncdnhc-discuss] .org issue

[KathrynKL at aol.com]

OK Jamie, below are some response to the issues you raise.

I.  You are causing confusion to yourself and others by using words which 
have precise legal definitions loosely.  

You are using non-profit (not-for-profit) and noncommercial interchangeably.  
They are not the same.  In your initial email, to which I responded, you 
called for protection only of "not- for profit entities" in the future .ORG 
(go read your email).  Not-for-profit, Jamie, is a precise legal definition 
for a certain type of organization. It is a legal and tax construction that 
exists only in some countries, not others.  It is an expensive proposition, 
and not one that many or even most noncommercial organizations do. 

But in using the term, you appear to support an argument of many commercial 
participants.  Some, particularly commercial groups, are calling for 
restriction of .ORG to only not for profit organizations.  But not for profit 
organizations are only a small subset of all noncommercial organizations, and 
all noncommercial organizations are only a small subset of the full and 
robust use of all noncommercial communication in .ORG.  Is this the position 
of the Consumer Project on Technology and the rest of the Nader groups-- a 
massive restriction of .ORG?  

If not, let's use the more inclusive terms in our discussion, namely 
"noncommercial communication.'

II.  Second, You are calling for the creation of a new set of 
pseudo-intellectual property rights for old noncommercial organizations, such 
as yours, that would expand UDRP and hurt all future noncommercial 
organizations.

Jamie, stop taking things personally and look at the big picture impact of 
what you are suggesting.  You want to create a litmus test of future .ORG use 
-- basically is a domain name in .ORG  noncommercial enough for the Consumer 
Project on Technology?  If it is not, then you are calling for the revocation 
or transfer of the domain name.  Our current mechanism, via ICANN, for 
revocation and transfer of the domain name is the UDRP.   

In the real world, the line between commercial and noncommercial is gray, 
subject to question, review, consideration, etc.  But it doesn't matter in 
the real world because no one is revoking domain names when a noncommercial 
group tries to raise money, or when another organization wants to steal 
someone else's cool .ORG name.  *It doesn't happen now, but you are setting 
the stage for the same game-playing we see in .com. *

III.  There are no standards for the tests you are asking for -- 
noncommercial is in the eyes of the beholder (which is why self-selection, as 
decided by the ICANN Board and the Names Council Task Force, is the right 
standard). 

Jamie, what would you and CPT have the test be for commercial vs. 
noncommercial be?   Will ACM lose its domain name because it takes new 
memberships (with credit cards) online?  Are you going to take away a Girl 
Scout Troups domain name because their website, in addition to their camping 
trip pictures, includes a price list of their cookies.   These are serious 
legal questions.

My concern is about the hard cases, not the easy cases like "CPT," Jamie.  
Good law and policy, as you know so well, are about the hard cases.  In the 
future, under your scenario, when two noncommercial entities argue over the 
same domain name, each will accuse the other of engaging in "commercial 
activity."   In the NCC, we will soon be at each other's throats...   
Organizations, individuals and families will be drawn into a new class of 
UDRP actions or lawsuits merely because they have cool .ORG domain names, and 
someone else wants them.   

This is the stage you are setting - and one that we should avoid (and even 
run from). 


kathy kleiman

> Jamie wrote:
> << 
>     Since I have never said that and do not believe this.  I would have to
> say that you got this wrong.  Where does this "large and established" stuff
> come from?  I have purchased .org domains for groups with no bylaws, no
> corporate charter, and unfortunately, no money, such as public-domain.org,
> and even use them for individuals who create protest or social comment
> sites.  ICANNWatch is a non-commercial organization, and I doubt it has
> wasted much time on legal things.  "those who can meet the difficult
> not-for-profit threshold?"   I don't understand what is difficult about
> being a non profit or non-commerical organization, or why an individual
> using something for non-commerical use could not be distinquished from 
> using
> it for commerical use.   Being exempt from taxes is difficult.  But simply
> being not for profit or non-commerical is not difficult.  I don't care 
> which
> term is used, I do think one can distinquish between commerical and
> non-commerical (profit or not for profit).   Most people think of .org as
> the not for profit name space, and .com as the for profit name space.  I
> have never suggested any legal tests or difficult requirements, and you
> should not say that I have if I have not.  It is confusing to claim I am
> asking for something that I have not asked for.  We have plenty of 
> confusion
> already, plus I resent you putting words in my mouth, and getting it wrong.
> 
> Also, I have not suggested in the comment about the UDRP that the NCC
> restrict who can buy or use a .org domain.   The issue of restricted vrs
> unrestricted is a separate issue, and I was not raising it here.  If you
> want a separate debate about the open or closed issue, we can do that.  I
> have opinions and ideas that we could discuss.  However, that was not my
> purpose in raising the UDRP/trademark issue, which can be addressed
> regardless of whether the domain is open or closed.  I have simply 
> suggested
> that ICANN expand the rights of non-commercial organizations (including
> those not formally organized non-commerical groups), to use names that are
> claimed by trademarks by businesses.    This would expand the rights of
> non-commerical domain holders, even fine too for individuals using .org for
> non-commerical purposes.  If the ACM or others are opposed to this 
> expansion
> of the rights of non-commerical domain name holders, then fine.  We don't
> agree.
> 
> 

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