t byfield on Sun, 21 Feb 1999 15:12:09 +0100 (CET)


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<nettime> WIPO RFC 3 critique


    [Michael Froomkin, a tech-savvy U.S. law professor who's 
     done quite a bit of theoretical and survey work on cryp-
     tography, security, and privacy issues over the past 4
     or 5 years, is now the 'public interest representative' 
     on a WIPO (World Intellectual Property Congress) expert 
     advisory panel dealing with issues involving domain names 
     and trademarks. He's written up a very extensive critical 
     reports about what's going on, 'A Critique of WIPO's RFC 
     3,' at: <http://www.law.miami.edu/~amf/critique.htm>. It's
     also an interesting window on the structure and operations 
     of a globocratic organization. Note that the deadline for 
     public comment is March 12. Anyway, here's a quick sample
     --the table of contents and some of the prefatory material.  
     Cheers, T]

A Critique of WIPO's RFC 3

PRELIMINARY DRAFT - SUBJECT TO REVISION 

A. Michael Froomkin 
Professor of Law, University of Miami 

Member, WIPO Internet Domain Name Process Panel of Experts

ver. 0.9 Revised 2/15/99 

See http://www.law. miami.edu/~amf for updated versions of this document.

     <info about various formats available at the site>

Preface: A Personal Analysis 1 
Summary of Major Concerns 2
The WIPO Process and Why It Matters 10
The Limited Role of the Experts 12
An Introduction to the Intellectual Property Issues 12
Detailed Critique of RFC3 18 

Chapter One:   The Internet, Domain Names and the WIPO Process 18
Chapter Two:   Avoiding Disjunction Between Cyberspace and the Rest of
               the World: Practices Designed to Minimize Conflicts 
               Arising out of Domain Name Registrations
Chapter Three: Resolving Conflicts in a Multijurisdictional World
               with a Global Medium: Uniform Dispute-Resolution 
               Procedures 25
               Chapter Four: The Problem of Notoriety: Famous and 
               Well-known Marks 44
Chapter Five:  New Generic Top-level Domains 48
About the author 52 


Preface: A Personal Analysis

1. On September 28, 1998 I was asked to serve on a World Intellectual
Property Organization "Panel of Experts" that WIPO had formed to advise it
on its forthcoming recommendations relating to domain name/trademark
issues. The WIPO official who invited me to join the panel said I had been
selected to ensure that there was a "public interest" advocate inside the
WIPO process. I accepted on condition that I be allowed to speak freely at
all stages of the process, and was assured that this condition presented
no difficulty. 

2. Although WIPO had already called a meeting of the Experts before I
joined the process, and WIPO had already largely defined the questions it
thought were relevant, the inclusion of a "public interest representative"
to serve as an institutionalized internal irritant even at a late stage
is, I think, a significant mark of good faith on the part of WIPO for
which the organization should be commended. 

3. I should emphasize that what follows is a strictly personal analysis.
My attendance at WIPO regional consultations have led me to understand
that not everyone comprehends how WIPO has chosen to employ the Panel of
Experts. Our limited role is described in more detail below. In this
process, WIPO drafts the documents it issues; the Panel of Experts merely
makes substantive or editorial suggestions which WIPO is free to accept or
reject. The exigencies of a rushed schedule also limited the amount of
time we had to review and comment on RFC 3 before it was issued. Just as
RFC3 therefore does not necessarily speak for every member of the advisory
panel of experts, this document represents my views only. The views
expressed here should not be attributed to WIPO or to any other member of
the advisory panel. 

4. On Dec. 24, 1998 WIPO issued its "Interim Report," RFC 3. I have
serious reservations about this document. I am particularly worried about
its possible consequences for the continued development of the Internet as
an international safe haven for free expression, and about the likely
effect of the proposed dispute resolution process on consumers everywhere.
I have decided to issue this personal critique in the hopes of stimulating
discussion of the issues which concern me. It seems particularly
appropriate to do so now since it appears that ICANN's draft registrar
accreditation guidelines adopt some of the objectionable features of RFC
3, even though it is only an interim report. 

5. WIPO's final report remains to be written, although not much time
remains before the March 12, 1999, deadline for comments. It is my hope
that my setting out my views in this way will result in a much changed,
much improved, final report from WIPO. Copies of this document are
accessible on the World Wide Web from http://www.law. miami.edu/~amf .
Suggestions and comments are welcome, addressed to me at amf@law.miami.edu
Please refer to the version number and date at the top of the document
when sending comments. Note, however, that comments sent to me in this
fashion are purely personal and unofficial. They will NOT become part of
the official record of the WIPO proceeding and are likely to be read by no
one but me. I urge all readers, therefore, to make sending comments
directly to WIPO their first priority until March 12, 1999. 

     <...>
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