Felipe Rodriquez on Thu, 26 Mar 1998 03:52:55 +0100 (MET)

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<nettime> EFF replies to Gordon Cook

EFF has forwarded this E-mail, in reply to the message of Mr. Cook, and
asked me to post it on the nettime list - Felipe Rodriquez

<start of message>

I understand that Gordon Cook has posted a long attack on the EFF comments
concerning the domain names issue to your list. EFF thought you should see
the comments themselves and make up your own mind about their merit.

Below you will find the full text of the comments.

Thank you,

Barry Steinhardt

					Electronic Frontier Foundation
					1550 Bryant Street, Suite 725
					San Francisco, CA  94103

					March 23, 1998

Karen Rose
Office of International Affairs
National Telecommunications and Information Administration (NTIA)
Room 4701
U.S. Department of Commerce
14th Street and Constitution Avenue, NW
Washington, DC  20230

Sent via e-mail (dns@ntia.doc.gov) and Federal Express.

Dear Ms. Rose,

The Electronic Frontier Foundation (EFF) thanks you for this opportunity to
comment on the Department of Commerce (DoC)ís attempts to find consensus on
Internet domain name policy.  EFF is a nonprofit, public-interest
organization working to protect rights and promote responsibility in the
electronic world.  We have read with interest your proposal for
"Improvement of Technical Management of Internet Names and Addresses," and
our comments are below.

Protection of Human Rights and Free Expression Should Be Overriding

EFF believes in the basic principle that any foundation for governance of a
communications system, such as the Internet, should stand on the
fundamental human right of free expression.  The strongest guarantees of
free expression, free association, due process, and nondiscriminatory
administration should be written into the charter of any organization
empowered with Internet oversight.  The Internet should be administered on
principles compatible with, but stronger than, the United Nations Universal
Declaration of Human Rights.  These guarantees regarding Internet
governance should not permit any party to limit human rights on the
Internet.  This guards against a repetition of the practice of some
national governments, which undermine the UN Declaration under the pretext
of "morality, public order and the general welfare" (Article 29 and 30).
They should only be amendable by an extraordinary supermajority procedure,
similar to a U.S. Constitutional amendment.

The IANA Is the Best Choice for Overseeing the DNS System

The DoC proposal states as a goal that the U.S. government should end its
role in the Internet domain naming system (DNS) as soon as possible. EFF
could not agree more.  We believe that the Internet Assigned Numbers
Authority (IANA), which currently administers the DNS and has been doing
this well for the past 20 years, is the proper organization to continue
administration of the DNS.  IANA is a private organization whose only
connection to any government or collection of governments is its history of
U.S. government research funding.  The authority of any new structure
designed to continue IANA's job of administrative maintenance of the
Internet should be clearly defined as independent of any and all
governments.  The U.S. government should not attempt to exercise oversight
or a veto over a transition of the IANA to a new corporation; such
oversight will be carried out by Internet users.  The Internet community is
much more likely to trust a new corporation to manage Internet
administration if it is clearly derived from the IANA and continues the
same personnel and general policies.

Any organization selected to administer the DNS must remain private,
whether in the legal form of a corporation or otherwise, and should be
not-for-profit, operating in the public interest for the benefit of the
Internet.  This administering organization should be governed by democratic
procedures which give suffrage to all stakeholders on the Internet.  To the
extent that any individuals wield power within the organization, they must
be charged to wield that power for the long-term benefit of the public, the
Internet users, and the entire human race, especially since all three of
these are synonymous in the long term.

It is of critical importance that any administering organization not simply
apply U.S. law, and that any new Internet domain naming system not rely on
U.S. jurisdiction over trademark issues and dispute resolution processes.
The Internet is international in scope, and its administering body must be
truly international in scope.

Network Solutions Cannot Be Trusted With Any Public Resource

EFF is very concerned that Network Solutions is attempting to convert its
five-year contract into a permanent monopoly.  EFF believes that the
National Science Foundation (NSF) made a mistake by failing to control this
for-profit company to protect the public interest.  Though the fundamental
mistake was made by NSF, it was compounded many times by the arrogance of
Network Solutions' management.  Yet, the DoC proposal gives Network
Solutions continued control of the .com, .net and .org domains.

EFF believes that the current management of Network Solutions has shown a
profound disregard for the public interest, which should disqualify it and
its parent company, Science Applications International Corporation (SAIC),
from having any benefit or privilege extended to them in the future
management of the domain name system.  They made a deliberate, intentional
and ongoing attempt to steal from the public the resource they had a
five-year stewardship contract to manage and protect.  It is as if they got
a contract to repair the stonework at Mount Rushmore and ended up trying to
own the national park.

As a result, they should not be trusted with even temporary control of any
valuable public resource.  If Network Solutions or SAIC continue in the
domain name business, they must operate only in highly competitive parts of
the business.  In particular, neither Network Solutions, SAIC, nor any
"nonprofit organization" started by them, or with overlapping directorship,
influence, or control by them, should manage the root or any global top
level domain (gTLD).  Any changes to the DNS must ensure that people will
continue to be able to register in the .com, .net, .org and .edu top level
domains without any involvement of Network Solutions.

We were happy to see that the DoC proposal requires Network Solutions to
give the U.S. government copies and documentation of all data, software and
licenses to other intellectual property generated under the Cooperative
Agreement and to turn over control and management of the main root server
to the U.S. government.  We are concerned, however, that the current
wording leaves significant loopholes that should be patched up.

Network Solutions should be required to turn over all root servers that it
operates, not simply the "A" root server, and any separate servers it uses
for the .com, .org, .net and .edu domains.  Due to the difficulty of
changing the set of globally known root server addresses, Network Solutions
must relinquish the entire set of IP addresses delegated to the InterNIC,
specifically, which contains both the "A" and "J" root
servers.  This should happen not "when the government directs," as
indicated in the DoC proposal, but rather when IANA or the new corporation
directs.  Network Solutions should begin immediately preparing for this by
moving other hosts off that network number, and doing anything else
necessary to ready itself for the transfer.

Furthermore, the requirement that Network Solutions turn over "appropriate
licenses to other intellectual property" is far too vague. All intellectual
property generated under the Cooperative Agreement is work-for-hire, and
the government owns it in trust for the public. Network Solutions has no
ownership rights to any of the work it created under that stewardship
contract, so how could it issue licenses?  The government should explicitly
put ownership of all such results into the public domain, so they can be
used by the public that paid for them.  It should then make the results
accessible via an NSF web site and via Freedom of Information Act requests.
 Please ensure that Network Solutions retains no credible claim to any of
the public's intellectual property.

No For-Profit Corporations or Governments Should Control the Root or gTLDs

Domain name registration and the generic top level domains themselves must
not be monopolized by a single for-profit registry, treated as any
for-profit entity's intellectual property, or controlled by or from within
any single governmental jurisdiction.  These domains have become
international and should not remain a U.S. monopoly.  They are a global
public trust and should not be exploited by profit-seeking companies or for
regional advantage.

IANA Should Have Supervisory Control of All gTLD Registration Databases

IANA, acting on behalf of the public, should have supervisory control of
the databases containing the registration data of each global top level
domain in the DNS, including the .com, .net, .org and .edu domains. IANA
should determine when and whether to create new gTLDs, including
specification of the alphanumeric strings, the timing of introduction of
new gTLDs and the number of gTLDS.  IANA should ensure that the data in
each database is freely available to the public, subject only to
international legal restrictions relating to privacy.

Each database should operate in the public interest on a cost recovery
basis and not for profit, under the overall supervision of IANA.  Access
for registration of second level domains in all databases should be equally
available to all registrars (except in exceptional circumstances determined
by IANA) on a non-discriminatory basis.  The administration of the domain
name system and generic top level domain registries must provide for domain
name portability rather than making it difficult or impossible for a
customer to switch registries.

If a de-centralized technical method, which would allow several different
registries to accept names in the same gTLD, can be made to work, it should
be adopted.  This would provide a very strong level of domain name
portability, in which a user could change not only the registrar (retailer)
but also the registry (wholesaler) that controls the pricing and policies
for the user's established domain name.  This would provide a much more
competitive market, avoiding lock-in at both levels, and would also permit
registries to be operated for profit, since registries that misserved their
customers would be unable to prevent users from switching to another
registry for the same TLD.  A prototype implementation has been suggested
to IANA; it involves having the name servers for a given gTLD independently
retrieve the pieces of the database from the various registries.  Each
server would merge the database pieces using freely available software,
which would resolve conflicting registrations since the last merge, before
publishing the new zone database.  The prototype would work for small
numbers of registries sharing a zone -- perhaps a dozen -- and could be
extended to larger numbers after gaining experience and evolving the tools.
 This proposed method would require oversight by IANA (under threat of
removal from the gTLD delegation) to prevent disruptive or negligent
practices by the registries.

Internet Technical Standards and Administrative Processes Should Not Be
Impeded by Lack of Consensus on Separate Issues Such as International

The current policy of providing ownership rights in Internet domain names
based on trademark registration is flawed and should be abandoned. No one
group of intellectual property holders' interests should outweigh any other
group's, or outweigh any other rights held by individuals and the public.
The current policy with respect to trademarks and domain names does not
even correctly reflect U.S. trademark law, let alone the laws of other
countries or any emerging international law of trademarks. The policy
appears to have been adopted to benefit Network Solutions (reducing the
number of lawsuits against it by large corporations) rather than to define
a balanced public policy.  Yet the current proposal seems to perpetuate
this horrible policy.

Under U.S. law, the First Amendment to the Constitution carries
considerably more weight than the Lanham Act.  Under the current DNS
administration, trademark holders are given greater rights to domain names
than others with legally recognized interests in specific domains. This is
not a reasonable application of the law, and it is not sound public policy.

Even the United States Patents and Trademarks Office (PTO) recognizes that
more than one entity can hold a trademark on the same word, name, or symbol
provided that it is used in completely different business categories.
Failure to provide for multiple uses of the same trademarked character
string in a domain name has resulted in big companies beating up on small
companies and individuals using the same or similar names.

Furthermore, the PTO recognizes that registration of a trademark creates a
right in the mark while the trademark is still pending.  The Internet
policy does not recognize registered but still pending trademarks, and
small companies with pending applications have been bullied into giving up
their domain names by larger companies with similar trademarks.

But most importantly, there are other legitimate uses of words, names and
symbols that have nothing to do with trademarks that get and deserve legal
protection yet are not recognized by the current policy.  For example,
Kayvan Sylvan, a man who runs his own computer consulting business,
registered the domain name sylvan.com.  Sylvan Learning Systems, which
holds a trademark on Mr. Sylvanís last name, threatened to take that domain
name under the current policy.  Mr. Sylvan had to trademark his last name
in a foreign country in order to keep his domain name!  There are other
examples of nontrademarked, yet legal, uses of terms.  For example, the
World Boxing Association might want to use the domain name knockout.com,
even though Hasbro toys has trademarked the term knockout as the name of a
game.  This should be a legally protected use of a domain name.

Domain names cannot be equated to trademarks or brand names, since the sole
domain name cannot be used by multiple participants to serve their various
non-infringing functions.  Instead, domain names should be distributed on a
first-come, first-served basis, and only if the company that wants a domain
name can prove that the current owner is confusing the customer (i.e.,
McDonald's Hardware decides to get into the fast-food business), could it
then prove trademark infringement.  And even then, it would not necessarily
succeed in taking over the domain, just forcing the infringer to stop
infringing on their trademark.

Trademark concerns cannot burden the free expression uses of domain names.
Users of domain names cannot be required to identify themselves or provide
an address for service of process or any other reason suggested in Appendix
2 of the DoC proposal in order to get a name, just as the U.S. government
cannot compel speakers in the physical world to identify themselves.  No
period of suspension of a domain name registration, which serves the same
function as censorship in this context, shall be imposed prior to an order
by a court of competent jurisdiction, with the burden of proof being on the

Many of these trademark disputes can be avoided with the creation of a
multitude of additional top level domains.  The current policy is flawed
and must be repaired.

Domain Name Ownership Disputes Should Be Resolved by Contract Law

A uniform procedure should be established for resolving domain name
ownership disputes by contract among registrars of second level domains in
each of the gTLDs.  This procedure must strike a proper balance, enforcing
the law as interpreted by courts, between domain name holders and the
owners of trademark rights.  It should offer an efficient and inexpensive
means of dispute resolution without supplanting or interfering with the
jurisdiction of national courts or the rights of Internet users to have
resort to the courts.  Finally, domain name registries should be insulated
from trademark claims.  The process of domain name registration cannot
become a proxy for trademark litigation.

Maintenance of the .edu Domain Should Not Be Given to Any Organization With
Exclusionary Intent

The current administration of the .edu domain is exclusionary and geared to
support American four-year universities at the expense of other educational
institutions, including local community colleges.  This gTLD should be run
by the same international, non-profit organization maintaining the other
top level domains and should be open to all educational institutions, as
defined by the institutions themselves.  A recent proposal being circulated
by Educom is completely unacceptable, where a hand-picked panel of college
presidents and chief information officers from four-year universities that
are members of Educom will decide which institutions can get a .edu
address.  Faculty members, students and non-four year academic institutions
should all be included in any decisions related to the .edu domain.

Payments to the Intellectual Infrastructure Fund Should Be Returned to

EFF was pleased to see that the DoC proposal terminates the Internet
Intellectual Infrastructure Fund (IIIF) as of April 1, 1998.  However, this
does not remedy the current problem of the illegal overcharges that have
already been made.  The Intellectual Infrastructure Fund should be fully
returned directly to the users who paid in.  Such refunds should be
returned to the users, so they can spend them on any domain name registrar
or on other things, rather than being applied as credits for future domain
name service from Network Solutions.  Network Solutions (which instigated
the policy of charging users for the IIIF) -- not the public or domain name
users -- should bear the costs for defending against any lawsuits and
administering the refunds.

No Transition Period Is Needed; Current IANA Can Make Decisions

The government's proposed transition plan is flawed in numerous ways. It
should not be adopted.  Instead, the current IANA should determine the
short-term evolution of domain name administration, as it has determined
the long-term evolution.  As the new IANA corporation is set up, this
function can be transferred to it by the old IANA.

The number of new domains should not be fixed by the U.S. government. The
U.S. government should not define rules for qualifications of a registrar
or a registry, or even define that the two must be separated. The role of
the government should be to drive the process to consensus, not to dictate
which consensus should be arrived at.

Furthermore, many of the requirements for registrars and registries are
poorly thought-out.  First, encryption, as opposed to authentication,
should not be required for registrar/registry transactions.  Such a
requirement would put U.S. organizations at a disadvantage, since they
cannot export their interface software (which is required by another part
of the proposal, in Appendix 1.1.g).

In addition, registrars do not need multiple connections to the Internet.
This requirement simply raises the base cost of providing service.
Competition will let users pick a registrar that is responsive and
available.  Most of the specified criteria for registrars do nothing more
than reduce competition by raising barriers to entry.

Thank you again for giving us the opportunity to comment as you work to
formulate policy in this important area.  We would be happy to meet with
you and work to create a system that is in the public interest.  Please
contact me at 301/375-8856 if I can be of any further assistance.


Shari Steele
Staff Attorney
Shari Steele, Staff Attorney	    ssteele@eff.org
Electronic Frontier Foundation	    301.375.8856 (v)
P.O. Box 649			    301.283.5337 (f)
Bryans Road, MD  20616		    http://www.eff.org/homes/steele.html

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