Cybersquatting and individuals

[Milton L Mueller]

The problem Timothe is that based on your earlier post it sounds like you are not calling for individual rights in _domain names_, but for expansive individual rights in "names".
In other words, you are saying that because an individual uses a string of characters in everyday life (e.g., the way I use "Milton") that ICANN's rules and policies should somehow find a way to guarantee me that no one in the world will ever use a domain name with the string "Milton" in it in a way that I don't like. That kind of over-reaching claim is precisely what has gotten us into so much trouble with Trademark holders, and led to overregulation of the whole domain name space.

I'll take a radical position (but a consistent one): I don't think my use of a real-life name or  names give me ANY rights to specific domain names whatsoever. If someone named Melvin happens to register Milton.com or Milton.[600 other TLDs] before me, that's just my tough luck. Unless Melvin is using the domain Milton.com to pretend to be me, or to slander me or defraud users, it's Melvin's domain, and it's _Melvin's_ property rights ICANN ought to be concerned with, not my post-hoc whinging about the fact that I didn't get the name I wanted. If I want it I can buy it from him.

The alternative position is what I call the "Platonic" or "divinely ordained" theory of domain name entitlement. I.e., it posits that you have a right to a name you haven't registered because of some real-life connection to the name. The underlying philosophy behind this is that for any name in the space, there is one just, rightful owner. That problem with that theory is that it requires a global centralized authority to determine who that just and rightful owner is. Another problem is that all kinds of concurrent and equally just claims on specific strings are possible. So that approach turns the simple first come firstserved registration process and creative appropriation into the kind of 700-page contractual lawyer-driven nightmare that we know as ICANN registry contracts. Please don't fall down that rathole.

--MM

> -----Original Message-----
> From: NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On
> Behalf Of Timothe Litt
> Sent: Thursday, April 07, 2011 3:02 PM
> To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: [NCSG-NCUC-DISCUSS] Cybersquatting and individuals
>
> I don't object to tradmark owners having (even powerful) rights in domain
> names.  It's expensive to develop and maintain a brand/trademark, and as
> has
> been well documented, there are societal costs (among them fraud, crime,
> health and safety) when these rights are breached by the unscrupulous.
>
> However, I do object to the notion that non-trademark owners have no
> rights
> in their domain names.  And that's what needs to be fixed.  Where
> trademark
> and non-trademark owners' rights conflict, there should be a reasonable
> balance that takes account of the interests of all the parties (including
> society at large.)
>
> With some creativity we could make the squatters work pretty hard.  "First
> and sustained productive use" is one test.  The other one that I burried in
> my note is "if the domain is for sale (on its webpage, some other webpage,
> whois, newspaper, e-mail list, etc), it's not in use".  Even if it does host
> some apparently productive service - "for sale" means you don't want or
> need
> it anymore.  And that means it should be free to be put to productive use.
> There are some caveats that come immediately to mind: a productive
> domain
> put up for sale as part of selling or re-organizing a business (hobby, club,
> ...) that is using it and would continue to do so post sale/reorganization
> is obviously not auto-freed.  There needs to be some provision for startup
> time, the inevitable downtimes and so on.  And we need to anticpiate and
> prevent use of the rules for hijacking-type extortion.  Your idea of timers
> can also help - basically, the idea is to make it expensive/unproductive to
> hoard names.  And if we create new TLDs - maybe we simply outlaw hoarding
> in
> them.
>
> Note that I don't object to auctions/bidding mechanisms as a way of
> allocating names when multiple parties want to put them to productive use.
>
> As for TLDs - 'TFZ' (trademark-free-zone), 'IND' (Independent or
> Individual), 'NCU' (Non-commercial user).  I do like the idea of honoring
> Jon - but POSTEL is too long to be popular.   And 'JON' would be an inside
> joke.  Sigh.
>
> I'd like to see some codified rights for non-trademark holders in the
> current TLDs, but it certainly should be possible in new/specialized ones.
>
> As an individual, coming up with several US$100K to make this happen isn't
> reasonable.  Not to mention all the legal infrastructure to support such a
> novel concept.  But ICANN has a responsibility to individual users of the
> internet (including, but not limited to DNS).  And we should be insisting
> that it devote some attention units to this responsibility.
>
> It would, however, be a good thing if NCUC provided an concensus
> description
> of our desired outcome.  Otherwise, we probably won't like what we get.
>
>
> Timothe Litt
> ACM Distinguished Engineer
> ---------------------------------------------------------
> This communication may not represent the ACM or my employer's views,
> if any, on the matters discussed.
>
>
> -----Original Message-----
> From: NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On
> Behalf Of
> Nicolas Adam
> Sent: Thursday, April 07, 2011 11:00
> To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
> Subject: Re: Cybersquatting and individuals
>
> Yes, i suppose you're right and we should not avoid altogether the issue of
> crafting tests and general principles of laws to govern conflict that are
> (most likely) sure to arise (that is, even if we were to expand the
> namespace aggressively ... well ... any list thoughts on this). And as you
> say, the reality of now is that powerfull property rights have been ascribed
> to a large array of "trademark"-type owners.
>
> And in this spirit, your test of "first productive use" seems like a good
> one. However, this might only bring about slight changes in the parking
> methods, and so in order to really alleviate squatting, the right to resale
> (or some resale mechanisms) might ultimately have to be addressed (which
> is
> a big can of fishbait). But your "first productive *and sustained* " might
> actually do the trick.
>
> I guess the question is: how hard (costly) would it be for squatters to
> change their parking methods in order to meet that kind of test? But there
> is something here, most definitely.
>
> You *really* have my attention with regards to some TLD devoid of de facto
> trademark rights. That is a brilliant idea and i do hope one tld
> entrepreneur will make that case to icann [insert your .suggestions here, i
> vote for .postel or .whoever was the most vocal against trademark law
> colonizing an addressing system].
>
> I agree with you that the US law (thx for citing it) is simple and
> straightforward, and it's in the spirit of what we actually have for the
> larger trademark-type rules so, this is also a very good idea that i support
> barring some more radical improvement.
>
> What does the list think of these suggestions? Do they already have an
> history in ICANN?
>
> Nicolas
>
> P.s. A thought on pricing for new-TLDs, you guys please tell me if you think
> i'm totally wrong here:
> If its 200k (for something not overly controversial politically or morally),
> then i submit that it is more then easy to garner that kind of cash, and the
> proof of the would-be-new-tld-pudding is probably way harder to make than
> acquiring some financing. No?
>
>
> On 05/04/2011 3:41 PM, Timothe Litt wrote:
> > Nicolas,
> >
> > I took your domain tasting suggestion differently; a time delay could
> > make it more expensive for the squatter as it ties up his money.  Of
> > course they are likely to just pass increased expenses on to the
> > customer.  Which is what leads me to some sort of "is it productively
> > used?" test.  If the default webpage, whois, or any other webpage says
> > "for sale", I presume non-use.  However, the absence of a public website
> does not imply non-use.
> > (E.g. mine requires X.509 client authentication; others may be FTP
> > only or VPN hubs or routers or embedded systems...)
> >
> > The US law (15 usc 1129) isn't perfect - but it protects some individuals.
> > And it's not very wordy or complicated.  At a minimum, why shouldn't
> > ICANN have an analogous provision in its UDRP?  Yes, I'm sure it would
> > get wordier and more complicated, but it does seem a reasonable start.
> >
> > I don't see that enlarging the TLD space helps; it just moves the problem.
> > And current TLD pricing is WAY out of the league of individuals, so it
> > moves disputes to an even more expensive place.
> >
> > Certainly hard cases make bad law - and as I said, I don't necessarily
> > want a special interest law for my case.
> >
> > But the current situation is skewed such that commercial interests (in
> > this case including non-profit corporations and other trademark
> > owners) have pretty powerful rights, and individual consumers have none.
> >
> > I suspect that under current doctrine, I could have been using (e.g.)
> > "LittFamilyNetworkServices.com.uk" for 20 years, and tomorrow someone
> > could register a trademark "Litt Family Network Services", put up a
> > $10 website that sells photos of worms to meet the commercial use test
> > - and forcibly take my domain name.  Then I get blackmailed to get it
> > back; the next country with cheap tradmark registration's squatter does
> the same thing.
> > Repeat forever.  And even though I'm just an individual, I have
> > hundreds of people on personal mailing lists and X.509 certificates
> > that rely on my name.  So the burden of changing is non-trivial in
> > both time and money.  But we currently agree with the ICANN policy
> > that "trademarks are the only thing of value; if you have one, you win."
> >
> > We claim to represent individual consumers as part of the
> > non-commercial user constituency.  We have put considerable effort
> > into ensuring that our trademark owners have rights.  Even though it's
> > a hard problem, we owe individual consumers the same consideration.
> >
> > Maybe part of the solution is "first productive (and sustained) use".
> > Maybe (as I've suggested in the past), there need to be TLDs where
> > trademark rights don't have precedence.  (A friend of mine in France
> > had a dog named 'Pepsi' - and said the derivation had nothing to do
> > with a certain soft
> > drink...)
> >
> > Maybe these aren't the best starting points.  But there has to be a
> > way for individuals to have some IP rights in their domain name(s).
> >
> > I know I'm not offering a full solution - but some sort of "productive
> use"
> > test does seem like a reasonable attack vector on the cybersquatting
> > problem that all DNS consumers - commercial and non-commercial - could
> support.
> >
> > Here's the text of the US law from the URL I quoted:
> >
> > §1129. Cyberpiracy protections for individuals
> > (1) In general.
> > (A) Civil liability. Any person who registers a domain name that
> > consists of the name of another living person, or a name substantially
> > and confusingly similar thereto, without that person's consent, with
> > the specific intent to profit from such name by selling the domain
> > name for financial gain to that person or any third party, shall be liable
> in a civil action by such person.
> > (B) Exception. A person who in good faith registers a domain name
> > consisting of the name of another living person, or a name
> > substantially and confusingly similar thereto, shall not be liable
> > under this paragraph if such name is used in, affiliated with, or
> > related to a work of authorship protected under title 17, United
> > States Code, including a work made for hire as defined in section 101
> > of title 17, United States Code, and if the person registering the
> > domain name is the copyright owner or licensee of the work, the person
> > intends to sell the domain name in conjunction with the lawful
> > exploitation of the work, and such registration is not prohibited by a
> > contract between the registrant and the named person. The exception
> > under this subparagraph shall apply only to a civil action brought
> > under paragraph
> > (1) and shall in no manner limit the protections afforded under the
> > Trademark Act of 1946 (15 U.S.C. 1051 et seq.) or other provision of
> > Federal or State law.
> > (2) Remedies. In any civil action brought under paragraph (1), a court
> > may award injunctive relief, including the forfeiture or cancellation
> > of the domain name or the transfer of the domain name to the
> > plaintiff. The court may also, in its discretion, award costs and
> > attorneys fees to the prevailing party.
> > (3) Definition. In this subsection, the term "domain name" has the
> > meaning given that term in section 45 of the Trademark Act of 1946 (15
> U.S.C. 1127).
> > (4) Effective date. This subsection shall apply to domain names
> > registered on or after the date of the enactment of this Act [enacted Nov.
> 29, 1999].
> >
> > Timothe Litt
> > ACM Distinguished Engineer
> > ---------------------------------------------------------
> > This communication may not represent the ACM or my employer's views,
> > if any, on the matters discussed.
> >
> > -----Original Message-----
> > From: NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] On
> Behalf
> > Of Nicolas Adam
> > Sent: Tuesday, April 05, 2011 13:28
> > To: NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
> > Subject: Re: Cybersquatting and individuals
> >
> > Dear Timothe,
> >
> > I'll have a stab, if only to get things started.
> >
> > I just can't seem to imagine a scheme where some form of udrp or
> > international law could institutionalize a proper allocating mechanism
> > that would both alleviate cybersquatting *and* be true to the
> > principle that meanings and names ? by virtue of their ambiguity,
> general-ness, etc. ?
> > shouldn't be subjected to a property rights regime that inevitably
> > (and
> > arbitrarily) assigns exclusiveness, even for a specific use. They say
> > "hard case make bad law", and this is one such example.
> > But, by all means, if someone sharper than I sees a good law for such
> > a hard case, i will be happy to consider it.
> >
> > I haphazardly suggested a few days ago that a time-delay before a
> > domain name could be resold might take care of some front
> > running/tasting problems by rendering likely that the legitimate user,
> > placed in a situation where its ideal (or first-querried) name is
> > registered by a front-running operation, would decide to create some
> > other domain name that would suit him rather then wait out for its
> original query to be available.
> >
> > Admittedly, this does not take care of all cybersquatting issues
> > which, for the purpose of this discussion, i will grant are all
> > instances of inferior value for a domain name. As you say, working out
> > the details of the proper market to institutionalize is the larger can of
> worms.
> >
> > I would say that part of the solution to cybersquatting-in-general
> > would be in the perpetual enlargement of the tld space, so that names
> > squatted need not be recouped but could rather be bypassed. This
> > solution requires people to imagine a tld space where .com is not the
> > sole repository of value. In order for an enlargement scheme to have
> > an impact, the initial enlargement would have to be substantial, and
> > the policy for further enlargement should also be clear, predictable,
> > and relatively burden-less so that would-be cybersquatters could see
> > right away that there is no value to be extracted in the new scheme of
> things.
> >
> > I would be tempted to have such a policy accompanied by the
> > combination of a "first-come, first served" norm that *could* (but
> > needn't) be implemented by the innovating registrar. If, for example,
> > ACM would run the .acm, then it could decide if it would hand out the
> > TimotheLitt.acm to me (or keept it for you).
> >
> > One of the things that this does is to put the litigation at the level
> > of the tld (preferably, before it is attributed to a registrar),
> > rather than at the level of the individual gunning for a specific
> > second or third-level name.
> >
> > I'm sure there will be more cognizant people on this list who will
> > have some other ideas. Also, please feel free to demolish the above.
> >
> > Take care,
> >
> > Nicolas
> >
> > On 05/04/2011 12:01 PM, Timothe Litt wrote:
> >> There has been a lot of consideration of the rights of trademark
> >> owners in domain names, both in general and on this list.
> >>
> >> I haven't seen the corresponding consideration given to the rights of
> >> non-commercial individuals; in fact the latest version of the ICANN
> >> UDRP that I can find
> >> (http://www.icann.org/en/udrp/udrp-policy-24oct99.htm) is silent on
> >> this
> > issue.
> >> Yet it seems that 15 USC 1129 (see
> >> http://www.bitlaw.com/source/15usc/1129.html) offers some protection
> >> to
> >> (some) individuals.  (Some references say this only applies to "famous"
> >> individuals; and U.S. law is restricted to the U.S.)
> >>
> >> I can see where this can be made a complex issue - e.g. family names,
> >> not to mention variations thereof are hardly unique.  Although in the
> >> trademark cases, "first come first serve" has been a successful
> >> tie-breaker some of the time.
> >>
> >> Here's a concrete example that (re-)piqued my interest.  I own and
> >> have used example.net for some years, and would like to also have
> >> example.com.  (Where 'example' is actually a variation of my family
> >> name.)  It turns out that the .com address is held by a cybersquatter.
> >> That is, someone WHOIS says owns many, many names, has been on the
> >> losing end of many UDRP commercial arbitrations, has changed the name
> >> of his company several times, and has an address that google earth
> >> shows to be an apartment over a Mailboxes ETC store in England.  Oh,
> >> and who doesn't respond to e-mail, even though there is a website on
> >> www.example.com that says "this domain may be for sale".  So it would
> >> seem that the provisions of 15 USC 1129 would apply.  But that
> >> requires a civil action - hardly reasonable for an individual.
> >> Especially since I'm in the U.S. - so unless there's equivalent law
> >> in the
> > U.K., there's really no protection at all - at any price!
> >> I think NCUC should advocate for some reasonable set of rules that
> >> define and protect individuals' rights in domain names that parallel
> >> those of trademark owners.  I'm not saying that the rules must
> >> produce a favorable outcome for my example (though it would be nice).
> >> But it does seem to me that ICANN's current omission of any provision
> >> for individuals' rights in domain names is a real issue for this group.
> >> Individuals are in our field of membership, and can not obtain a
> >> trademark unless they intend to use that mark in commerce.  (Not to
> >> mention the cost.)
> >>
> >> Other opinions?  Anyone care to take a stab at what "reasonable rules"
> >> might be?
> >>
> >> I also wonder whether there is a public policy argument that (a)
> >> domain names are a public resource and (b) a registrant who's sole
> >> purpose for registration of a name is to re-sell it represents an
> >> inferior use to that of a registrant who has a direct use for it.
> >> (Not necessarily a website, by the way.)  That's probably a larger
> >> can of worms, but it might be an approach to consider when discussing
> >> whether cybersquatting has redeeming social value...
> >>
> >> By the way, I don't mean to restrict my comments to family names -
> >> among others, boat names, pet names, personal slogans, political
> >> statements are all reasonable things for individuals to want as their
> > domain names.
> >> Timothe Litt
> >> ACM Distinguished Engineer
> >>
> >> (Previously used tlhackque at yahoo.com for e-mail on this list.)
> >> ---------------------------------------------------------
> >> This communication may not represent the ACM or my employer's views,
> >> if any, on the matters discussed.
> >>
> >>