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?

Wednesday, June 18, 2008

Breeding open standard foxes

Living in a city where it is quite common to see red foxes wandering around, and having one "meeting" me half a way between the train station and my house every time I arrive home late after work, there is little doubt that I should take part of the campaign to make Firefox 3 the most downloaded software in a day (and hopefully the most used browser in Internet). And language is not an excuse...

Cordoba and the future of Internet

I'm back from a trip to Argentina where I visited friends, engaged in some court cases, talked with universities about cooperation and participated, as keynote speaker, in the III Argentine National Conference of Computer Law. I also had the opportunity to give a lecture as guest professor at the School of Law of the Universidad Nacional de Cordoba, the third oldest in Latin America and one of the most prestigious south of the Rio Grande, where I talked about Internet security and regulation using the same multi-layered and multi-section analysis that I've been carrying out in other topics since my doctoral studies. There I went through the systemic, company and personal areas at infrastructure, applications and user levels to see what are the possible threats, the potential solutions and the regulatory responses to Internet security issues. Then, today, when logging in to Facebook I've found that Jonathan has posted a link to his appearance in The Colbert Report, where he uses his little more than 6 minutes to deal with the same issues (with a "little" more of authority and quality). As I told Jonathan few weeks ago, I have the English version of his latest book, but I am still hoping to get the American version of it and then have it signed (the content is the same but I like the cover better and, yes, I am snob).

Tuesday, June 10, 2008

Amazon to pay taxes in…everywhere

Once upon a time, after finishing my PhD dissertation I said that I wouldn’t deal with or write again about Internet taxation (both my Master and PhD dissertations were about e-commerce taxation), but it seems that some recent developments may imply that e-taxes could have some value for academic analysis again.
The fact giving raise to an array of legal issues has been the decision of the State of New York to charge sales taxes to Amazon based on the existence of physical presence through the Amazon Associates that the State understands act as the Seattle-based company’s agents. The rule has been that as long as a retailer does not have a physical presence in the buyer’s state, the seller does not need to collect sale taxes. While some thought that the rule had to be changed to look similar to that of the EU’s VAT in regards to electronic commerce (the topic of my master’s thesis), what the State of New York did was simple to expand the concept of physical presence. The State’s reasoning is that if Amazon gets a commission for the Associates’ sales, the later become Amazon agents and, accordingly, Amazon would start having physical presence.
If we follow Fortune Magazine

In truth, all purchases on Amazon have always been subject to taxes. Until now,
only four states required Amazon itself to collect the tax: Washington (where
Amazon's HQ is), North Dakota (the site of customer relations operations),
Kentucky and Kansas (those last two contain large Amazon distribution centers).
In other states, shoppers are supposed to keep track of their untaxed
out-of-state purchases and report them in their state income tax returns every
year. Needless to say, this doesn't always happen.

In any case, the State of New York law requiring the collection of taxes in such unorthodox way does not differ much from most tax laws that create legal fictions in order to create a nexus between an act of commerce and a tax jurisdiction based purely on tax policy. It seems that now that some states, probably followed by all the others, have decided to put on the same foot Internet retailers and brick and mortar retailers from the tax point of view, we could discuss again what is the ideal legal fiction to attract tax liabilities that are fair, clear and simple. On the other hand, it has been clear for many years that the tax policy of not taxing Internet commerce to promote its development has been, again, the result of successful lobbying, ignorant policy makers and general public lack of interest (all mix with some dose of misinformation). There has never been a strong case for subsidizing Internet commerce development, not because such a development has not to be welcomed, but because such subsidy has not been necessary (few industries have growth so quickly and strongly and have made more people billonaires, and it could be argued that in order to violate the principle of technological neutrality in tax issues a very strong case should be put forward).
So, it may be time to review some of my old books and see what happen in the formerly hot area of Internet law…

Sunday, June 01, 2008

Terceras Jornadas Argentinas de Derecho Informático

ADIAR - Asociación de Derecho Informático de la Argentina -
AGEIA DENSI - Asociación Grupo de Estudio e Investigación Académica en Derecho, Economía y Negocios en la Sociedad de la Información.-



El próximo Viernes 13 de junio de 2008, se realizara el evento mas importante del año en Derecho Informático de Argentina, con la participación de exponentes Nacionales e Internacionales. Juristas especialistas y Técnicos reconocidos mundialmente, se harán presentes en esta Ciudad, para exponer y presentar importantes temas de la problemática de la sociedad de la información y el cambio de paradigmas originados en la Economía y el Derecho.

Cuatro son los Paneles programados para este evento:





Dicha presentación se realizara en la Sede de la Facultad de Derecho y Cs. Sociales UNC a partir de las 8:00 hs. del Viernes 13 de Junio.


Entre los asistentes contaremos con la presencia de:

Dr. Fernando Barrio, Profesor de Derecho del Año en el Reino Unido, Profesor en la London Metropolitan University

Dr. Horacio Fernández Delpech, Presidente de la Asociación de Derecho Informático de la Argentina, Autor de " Internet y su Problemática Jurídica".-

Dr. Carlos Dionisio Aguirre, Representante de los Usuarios de América Latina y el Caribe en el Gobierno Mundial de Internet. ( ALAC-ICANN).-

Raúl Echeverría, Presidente del Registro Regional de Nombres y Números de Dominios para América Latina y el Caribe - ICANN (LAC NIC)-.

Gustavo Soliño, Director del NIC Argentina.-

Dr. Ricardo Sáenz, Pte. Asoc. Fiscales y Funcionarios Justicia Nacional

Dr. José María Pérez Corti, Secretario del Juzgado Electoral de la Provincia de Córdoba.-

Alberto Oscar Uez, Director Centro Cómputos Trib. Federales Córdoba.

Dr. Matías Altamira Gigena, America Latina y Caribe Nom Com (ICANN)

Dr. Guillermo Zamora, ADIAR

Dr. Martín Carranza Torres, BSA en Argentina.-

Dr. Aníbal Pardini, Dirección de Informática de la Provincia de Córdoba

Dr. Rolando Ortega Hernández, Univ. Santa Maria, Caracas-Venezuela

Dr. Dante Rossi , Legislador Provincial

Dr. Fernando Machado, Funcionario Municipal

Dr. Gonzalo Ferreras, Pte. AGEIA DENSI Argentina

Dr. Andres Piazza, ColorIuris Argentina

y Usted.

Córdoba, viernes 13 de Junio de 8 a 20 hs. , Facultad de Derecho (UNC). Casco Histórico, Manzana Jesuítica.