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Throughout the domain
The notion that we are simply translating traditional rights into a new medium is easily exposed as
Everything depends on the context and the way the name is used. Rights in the domain name system, on the other hand, are based primarily on technical exclusivity. Furthermore, trademark rights are territorial, whereas domain
And we are in the process of altering the nature of name rights. Much attention has been devoted to the threat of cybersquatting. Less attention has been paid to the danger that measures to control it are expanding property rights to names at the expense of free expression, privacy, and competition.
Increasingly in the domain name space rights are established and defended not through ex post facto litigation that applies a legal standard to a particular situation, but by preemptive regulation. By 'preemptive regulation' I mean techniques that protect name rights on an ex ante basis by hardwiring certain kinds of protection into the technical system. Rights become mechanized, the ultimate example of what Lessig (1999) calls regulation by Code.
The clearest examples of preemptive regulation are name exclusions. If one controls the root, one can insert into all contracts with domain name registries a list of
WIPO promoted the idea of across-the-board exclusions for major trademark holders during its first domain name process in 1999 (WIPO 1998; 1999). It advocated creating a list of globally famous trademarks that would then be excluded entirely from the DNS database. The list of famous marks would be compiled by WIPO through an application and review process that did not impose any fixed limit on the number of companies or marks to be granted this exclusive status. The proposal was a rather dramatic contradiction of WIPO's claim that it did not want to create new rights. An
But WIPO is not the only organization to advocate and use name exclusions. ICANN's staff unilaterally imposed a significant number of name exclusions upon the new generic top-level domain registries it created in 2001. Most of the affected names were acronyms and names associated with the Internet technical community and ICANN's own organizational subsidiaries. [3 ] Some of the excluded acronyms, however, were actually trademarked by private companies in various places in the world. Generic words like ripe and museum were excluded. The fact that global rights could be created by fiat, without any policy consultation or oversight, speaks to the potential power inherent in ICANN's position at the root.
Another form of preemptive regulation is simply the refusal to permit the creation of new top-level domains. Trademark holders fought successfully against the creation of any new TLDs from 1997 to 2000 because it would raise their policing costs and increase the possibility that someone, somewhere, might register a name that a trademark owner finds
There is, of course, nothing new about attempts by incumbent intellectual property holders to block the introduction of services or technologies that (they feel) threaten the exclusivity of intellectual property. Major copyright holders attempted to ban videocassette
Preemptive regulation can also take the form of procedures regulating the initial assignment of names in new top-level domains. So-called 'sunrise' procedures, for example, give trademark owners privileged access to domain name registrations in the opening phase of new top-level domains. A proposal put forward by the Intellectual Property Constituency of the Domain Name Supporting Organization (DNSO), for example, demanded a 30-day period prior to the public launch of a new top-level domain during which registrations would only be available to trademark owners. The plan, dubbed 'sunrise plus twenty,' allowed a trademark owner whose mark was at least one year old to register 21 variations of a trademarked name within the new TLDs. It also asked registries to supply these ' sunrise' registrations at a discount to normal domain name registration fees. Such procedures privilege trademark
The problem with name exclusions, 'sunrise' proposals, and other preemptive rights should be apparent. They substitute technical exclusivity and
rules for what should be
Neither WIPO nor the trademark interests have succeeded in getting all the preemptive rights they wanted out of the new regime. But it is significant that such rights are constantly being sought and that it is
A critical part of maintaining any property right is the need to monitor its boundaries, that is, to identify perceived violations of the right and take effective enforcement action against them. Under traditional trademark practice, the owner of a mark is responsible for all policing and monitoring activity and costs. In the physical world, there is no single, integrated, global database of company, product, or brand names in which everyone must register. Trademark policing relies on a variety of activities: monitoring official trademark registers, checking telephone directories and Yellow Pages, searching industrial directories, and physically examining products in stores, to name a few. A number of specialized firms supply this surveillance function on a commercial basis to major brand holders.
As discussed in chapter 9, the creation of an institutional regime based on control of the DNS root has made it possible for intellectual property interests to claim new and expansive rights of surveillance over the adoption of names by users. The vehicle for these new rights is the WHOIS database.
The WHOIS database allows one to type in a domain name and pull up the name and address of the individual or company that registered the domain. It also shows the dates on which the domain was created, when it
With the emergence of domain name-trademark conflicts, the WHOIS protocol took on a new function. It became a surveillance tool for intellectual property holders. The intellectual property interests
The first WIPO process recommended that the contact details in a WHOIS record be contractually required to be complete, accurate, and upto-date, on penalty of forfeiture of the domain name (WIPO 1999, para. 73). The intellectual property interests also demanded 'bulk access' to the WHOIS data of domain name registrars, that is, the right to purchase the complete list and contact data for all of a registrar's customers in one fell swoop. They now want WHOIS functionality to be expanded, so that data can be searchable by domain name, the registrants' name or postal address, technical or administrative contact name, NIC handles,
and IP addresses. They also want searches to be based on Boolean operators or incomplete matches, as well as exact string matches. Further, they are requesting that the results of searches not be limited to a certain number (Network Solutions can only return 50 records at a time). Moreover, they want this expanded capability to be subsidized, that is, they want it to be
As noted in chapter 9, the issue is no longer exclusively one of trademark surveillance and protection. Copyright interests now view expanded WHOIS functionality as a way to identify and serve process upon the owners of allegedly infringing Web sites. That is, 'technical coordination' of the domain name system is already being leveraged to police the
of Web sites as well as their domain names. Moreover, public law enforcement agencies, notably the U.S. Federal Bureau of Investigation, have become deeply interested in the use of WHOIS to supplement their law enforcement activities. Ultimately, the intent seems to be to make a domain name the cyberspace equivalent of a driver's license. Only, unlike the driver's licenses database, this one would be
Whether one supports or opposes the intellectual property interests' agenda for the WHOIS service, it is incontestable that the surveillance rights they are seeking are more comprehensive than any that have existed before. A reduction of transaction costs per se is not bad; indeed, from an economic standpoint, lower transaction costs, almost by definition, contribute to greater efficiency. The problem is that the expansive and compulsory WHOIS functions sought by the intellectual property interests do not reduce transaction costs for all. They mostly shift cost and risks that used to be assumed by intellectual property owners onto end users, registries, and registrars, in order to make life easier for trademark owners. End users are being asked to sacrifice privacy and expose
To compel everyone in the domain name space to expose themselves to surveillance expands the strength and comprehensiveness of intellectual property owners' rights over names. To require that the system be
Dear Ms. Henslee,
I was sitting on my back porch this evening, and someone drove by
ridinga Harley Davidson motorcycle with a defective exhaust system. My community has strictlyenforced noise and smog ordinances, and this person was clearly in violation of both. This person was also not wearinga helmet, in violation of the law. I shouted at the rider, whereupon he rode across and damaged my lawn. I would like to bring a trespass action against him, but I could not identify him. However, I can identify the make, model, year and colorof the hog. I went to your Web site, and I noticed that Harley Davidson does not provide a readily accessible database of warranty registrations or, indeed, any other information that will assist me to identify the violator. As you surely can appreciate based on your comments concerning the WHOIS database, your provision of this information would certainlyhelp in bringing this lawbreaker to justice, as well as anyone else who uses a Harley Davidson product to violatethe law. As I'm sure you are aware, despite the fine reputation enjoyed by Harley, and my own admiration for your machines, there is an element of the subculture associated with your company's product which has been known to demonstratea pattern of unlawfulbehavior such as gang activity and drug transportation. Many of them may own more than one motorcycle. So, I'm sure there is considerable demand for this data.
Since there doesn't appear to be a
convenientdatabase, is there some way that I can arrange to purchase the names, postal addresses, email addresses, and telephone and fax numbers of people who own Harley Davidson motorcycles? If I send the description to you, will you help me identify the owner?
The Harley-Davidson lawyer was not amused by the parallel. But she did not argue effectively against its validity. Under ICANN's
The following names are reserved at the second level and at all other levels within the TLD at which an ICANN-
[4 ] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
The NIC handle is a short, unique
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