Friday, June 27, 2008

ICANN is putting the S in SEX 1.0

These days there has been much fuss about the decision of ICANN to approve “a recommendation that could see a whole range of new names introduced to the Internet's addressing system”, and, while some of the concerns are legitimate, people forget that ICANN is fulfilling the mandate of its “creator”, the US Government. It is interesting though, that in reporting the news, most newslets refer to ICANN as the “Internet regulators”, and when in Rio’s IGF I explained why ICANN was the regulator of Internet some members of the board felt almost offended going as far as saying “it was painful to see how misinformed was Barrio” (from an internal ICANN email that was forwarded anonymised to me)…it seems that there are many misinformed people or somebody does not know what a regulator is…
Going back to the opening of the TLDs to new names or strings of letters, in the memorandum of understanding for which the Department of Commerce of the US transferred to ICANN the management of the DNS system, it is clearly stated that one of the agreement’s aim was to create a system that “promotes the management of the DNS in a manner that will permit market mechanisms to support competition and consumer choice” with the purpose of “lower[ing] costs, promot[ing] innovation, and enhance[ing] user choice and satisfaction”, and ICANN decision is a correct step in that direction. Although it could be argued that there is no other way around due to the need of stability of the network, the current system promotes competition during the allocation of the administration of a domain to a registry to then secure a monopoly (this can not be understood as a criticism because with the current protocols could not be in any other way, if not we will be reading daily about registries failing and part of the people disappearing from cyberspace), so ICANN’s next move is to open up the possibilities of getting that sort of “monopoly” to a greater number of persons, which seems to be the correct thing to do.
What precedes does not imply that doing the correct thing is trouble-free or that it cannot be perfected (it also important to remember that ICANN itself has acknowledged that the definitive version of the proposal needs to be properly worked out and there are several technical issues to deal with). Some of the problems have been properly identified in Monika Ermert’s post on IP Watch, like the concerns of brands' rights-owners (I don’t agree with the denomination of “brand-owners”) about new possibilities for cybersquating.
On IP Watch blog Jay Scott Evans, former chair of ICANN’s Intellectual Property Constituency and senior legal advisor for Yahoo is quoting saying “Why should brand owners have to invest huge amounts of money to protect their brands?” and the answer is quite straight forward: because trademark is a private right, granted by the State “to guarantee the identity of the origin of the marked product to the consumer or final user by enabling him to distinguish without any possibility of confusion between that product and products which have another origin”, as properly explained in Pfizer Inc -v- Eurim-Pharm Gmbh R-1/81; [1981] EUECJ R-1/81; 1 CMLR 406, and if there is a case of infringement it should be the rights’ “owner” the one protecting its rights. If there is any damage to consumers, through bogus websites impersonating a legitimate one, there are other resources that the state can use to avoid that activity, like fraud legislation, as example. Why public resources should be used to guarantee private corporations profits? Isn’t enough that through trademark law the state guarantees an always-renewable monopoly over the use of part of the common language? (and I am not ignoring the fact that due to what I call the prostitution of IP law trademark infringement has been criminalized in most jurisdictions). The proposal of creating a reserved list fails to acknowledge that a domain name may have more than one person with valid title over it, and tries to give an unfair (I would say illegal) advantage to those who have the rights over renowned brands.
Mr Evans goes further by saying that “[t]he day is coming when some aggressive trademark owner will start litigation against either ICANN, the registry or the registrar”, probably hoping to frighten ICANN board members or creating the precedent that somebody could use later in court (adducing that these parties are facilitators, probably thinking that if it worked in the Grokster case, why wouldn’t work in a trademark case too). I am quite confident that ICANN board members have quite thick skin to be frightened by such a tenuous threat, but I am not very sure if the Senior Legal Counsel of Yahoo is implying that Yahoo should be liable for “facilitating” trademark infringement in its searches and copyrights infringement on his many sites…do you want to rephrase that counsel?

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