Cybersquatting and individuals

[Timothe Litt]

Milton,

I think you are drawing too much from the situation that caused me to think
about all this.  I am not advocating insanity.  I'm sorry that wasn't clear.
Let's consider your scenario:

Case a) Melvin gets milton.com as you describe.
	Right now, Melvin can pretend to be you, and you have no recourse
thru ICANN policy.  You can try the courts - if you can afford it.

Case b)You got milton.com 5 years ago and have an extended family website,
also hosting personal interest blogs and mailing lists involving several
hundred (or thousand) people.  Your great aunt happens to be an amateur
circus designer who writes circus critiques and despises funhouses that
glamorize obesity.
	Milton funhouse mirror supply (MFMS) incorporates in Zambia, and
gets a tradmark for the Milton brand.

	Under current policy, you lose your domain name - only trademark
holders have rights.  You have no right even to the domain name.

Case c) SquatSlug has registered milton.com along with 900,000 other domain
names with the hope of profiting via the usual greenmail.  All that it's
used for is a website that says "This domain (might be) for sale".

	As you say, you can try to buy it from her - if you can find viable
contact information and if you can afford it.

	But effectively you will never get that string, despite the fact
that it is not being used productively.

	That's the way .com works, and there's not much we can do about it.

	However, I posit that it would be quite useful to have one or more
TLDs with different rules - that effectively ban SquatSlug and her kind from
tieing up domain names.  If they're not in productive use, they're available
first-come first-serve.  I believe this would be popular in both
non-commerical and commercial TLDs - though regrettably, it can't be
implemented ex-post facto.  With this rule, both you and Melvin can put the
name to productive use without paying black (er, green) mail.  This isn't a
right to a _name_, it's an attempt to make sure that a scarce public
resource is put to productive use.  

Further, I posit that it would be useful to create one or more new TLDs
where trademark rights are attenuated, so that once you have milton.com, you
can't lose it to MFMS under case (b).  You could lose it if you impersonated
MFMS.  This is an attempt to provide you with a TLD where you have the right
to your _domain name_ free of highjacking by trademark.

If a TLD were created with attenuated trademark rights, I would advocate
that it also be a squatter-free TLD.  The two are orthogonal, but I happen
to believe in both.
	
Yes, domain names have become a circus.  I'd just like to have some part of
the namespace where individuals have rights.

I'm open to alternative ideas on how to get there, and what they should be.

---------------------------------------------------------
This communication may not represent my employer's views,
if any, on the matters discussed. 
 
-----Original Message-----
From: Milton L Mueller [mailto:mueller at syr.edu] 
Sent: Friday, April 08, 2011 11:07
To: 'Timothe Litt'; NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
Subject: RE: [NCSG-NCUC-DISCUSS] Cybersquatting and individuals

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.
> >>
> >>