6.3 Conflicts over Top-Level Domains

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Amidst the intellectual property battles, the new policy of charging for domain names was turning domain name registration into a profitable enterprise. SAIC had infused its new acquisition with the cash needed to automate its registration operations. Network Solutions' revenues rose to US$19 million in 1996-small by current standards but triple what it had been the year before. In 1997 annual revenues leaped to US$45.3 million, and in September of that year an initial public offering of 3.3 million shares on NASDAQ generated a market value of US$350 million.

Network Solutions' success fueled demand for new top-level domain name assignments. The demand came from business people who wanted in on the bonanza, and, for very different reasons, from the Internet engineering community. But the property rights and public policy problems raised by the creation of new top-level domains proved to be even more difficult to resolve than the fights over second-level domain names. Ultimately, the technical community's organic institutions-the Internet Assigned Numbers Authority (IANA) and the Internet Architecture Board (IAB)-proved to be incapable of responding to the need for new top-level domains. Their informal chain of authority lacked sufficient legitimacy and recognition in the commercial and political world. The Internet engineering community lost control of its name space at this time.

6.3.1 Delegation Conflicts over Country Codes-RFC 1591

The growing significance of the Internet after 1991 began to make the delegation of country code top-level domains contentious. In some countries, different government agencies or organizations within the country competed among themselves for the right to be delegated the country code. IANA sometimes received letters from people purporting to be government authorities requesting a change in the delegation. Some of them did not really have the claimed authority or appropriate qualifications (Klensin 2001). Issues about which nationalities qualified for a country code began to arise.

In an attempt to clarify the basis for making TLD delegations, Postel drafted a more explicit policy, which was released as RFC 1591 in March 1994. This was just before the World Wide Web explosion and only a year and a half before Network Solutions was authorized to charge for domain names. The document enumerated the following criteria for making a delegation:

• There must be a designated manager for supervising the domain's name space, and the administrative contact must reside in the country.

• The designated manager is the trustee of the top-level domain for both the nation and the global Internet community.

• The designated manager must be equitable to all groups in the domain that request domain names.

• Significantly interested parties in the domain should agree that the designated manager is the appropriate party.

• The designated manager must do a satisfactory job of operating the DNS service for the domain.

The statement proposed to set up an 'Internet DNS Names Review Board' to resolve disputes about delegations. It also explicitly distanced IANA from the politically contentious problem of deciding what qualified as a country.

RFC 1591 has been called 'one of Jon Postel's masterpieces' by one Internet veteran (Klensin 2001). From an institutional perspective, however, RFC 1591 was more like a symptom of a growing problem: the traditional Internet community's inability to cope with the commercial and political pressures closing in on top-level domain delegations. The strongest and most effective aspect of the policy was its decision to strictly adhere to the ISO-3166-1 list as the basis for ccTLDs. The list-an official standard produced by a UN agency-was a reasonably objective item that shielded IANA from political pressure to modify the list of available top-level domains. RFC 1591 also reflected Postel's wise sense that whenever possible, conflicts or competition within a country should be resolved before a delegation was made rather than thrusting IANA into a position to determine who was 'right.' In general, however, RFC 1591 proved ineffective or arbitrary.

RFC 1591 was an anachronism almost as soon as it was issued. The Web was transforming the Internet into a mass medium, and domain name registration was about to become a lucrative market. Yet Postel still thought of TLD administration as a 'public service,' and to him this meant not just nonprofit supply but service 'carried out at no or minimal cost to the users (Klensin 2001). The policy was based on a 'trustee' concept of delegation but specified the criteria of trusteeship in only the vaguest terms and basically gave one man (Postel) the right to determine who was a 'significantly interested party' and who best qualified as a trustee. Interestingly, RFC 1591 defined ccTLD managers as trustees for two distinct communities: the country and the 'global Internet community.' Only a year before a cacophony of conflicting claims to names would begin to transform the institutional arrangements of the Internet, Postel offered the aphorism, 'Concerns about ‘rights' and ‘ownership' of domains are inappropriate. It is appropriate to be concerned about ‘responsibilities' and ‘service' to the community.' In short, RFC 1591 took the philosophy and informal practices that had worked well when the Internet was the responsibility of a relatively small, noncommercial community of engineers and tried to transmute it into a platform for allocating a globally contested resource. It didn't work.

From 1994 to 1997, following the publication of RFC 1591, the last remaining country code delegations were added to the root at an accelerating pace. The RFC served as a minor restraint on a stampede to occupy valuable territory. Administrative contacts for developing country TLDs often do not reside in the affected country. ^{[31 ]}Many of the country codes delegated by Postel at this time were in fact to commercial entities. Many tiny countries and dependencies, by virtue of their presence on the ISO-3166 list, could claim a TLD-a valuable right that commercial corporations in developed economies sought unsuccessfully for years. Some of the small territories utilized this windfall as a revenue-generating source, creating a new breed of ccTLD: the quasi-generic country code. ^{[32 ]}In a few cases, notably Haiti, Postel was dragged into domestic disputes and made arbitrary decisions. ^{[33 ]}The lofty notions about trusteeship for the nation and the global Internet community were soon replaced by a new rule in practice: 'Follow the expressed wishes of the government of the country with regard to the domain name manager for the country code corresponding to that country.'

The Names Review Board was never established. RFC 1591 failed to provide a solid procedural basis for delegating new generic top-level names. Its whole approach to the trademark problem was to propose to limit the role of the registration authority to providing 'contact information to both parties.' A wise policy, perhaps, but ultimately one that was honored only in the breach, as first Network Solutions and later ICANN directly involved registries in dispute resolution. In short, while RFC 1591 may have been useful as an informal set of guidelines within the Internet community, it did nothing to resolve the growing property rights conflicts taking place at the top level.

6.3.2 newdom and the Response to Charging

A rift was growing between Network Solutions and the Internet technical community. The community had reacted uncomfortably to the acquisition of the InterNIC registry by a multibillion-dollar defense contractor in March 1996. Many of its participants did not approve of the commercialization of domain names generally. ^{[34 ]}The company's dispute resolution policy was unpopular, not so much because of its substance but because it was perceived as a move made without consulting the broader community. ^{[35 ]}The decision by NSF to allow charging for domains was also widely perceived as something that happened without sufficient consultation. ^{[36 ]}

The announcement of that decision in September 1995, therefore, precipitated a strong reaction on the email lists frequented by the techies. Only two days after NSF transmitted its letter authorizing charging, Jon Postel sent an email to the Internet Society board: 'I think this introduction of charging by the InterNIC for domain registrations is sufficient cause to take steps to set up a small number of alternate top-level domains managed by other registration centers. I'd like to see some competition between registration services to encourage good service at low prices.' ^{[37 ]}

Postel's attitude was shared by many others in the technical community. Creating new top-level domains (TLDs) was a way to reassert the authority of 'the community' over Internet administration. A new mailing list/ working group on new top-level domains, newdom, was formed on September 15, 1995.

The newdom list became the first great battleground of what would become a five-year struggle to authorize new top-level domains. The group's original goal had been to implement competition in domain name registration within a few months, before Network Solutions was actually able to bill anyone. The list members quickly discovered, however, that defining top-level domains, which had been controversial in 1984 when no money was at stake, raised even more complex questions in the new commercialized environment. Among the issues the list confronted were the following:

• How many new TLDs should be or could be added? If limits must be imposed, how does one decide who gets to administer a new TLD and who doesn't? Will those limits provoke lawsuits?

• If there are competing applications for the same TLD, how does one decide which applicant gets it? Will those decisions spark lawsuits?

• Should the root server administrator benefit from the addition of new TLDs, for example, by charging a fee, auctioning off the right, or demanding a percentage of revenues?

• Are delegations made in perpetuity, or for a fixed term? How can they be retracted?

• Can there be intellectual property in a TLD string? Do those rights inhere in the registrant, the registry, or the root administrator?

• Do the administrators of a TLD domain 'own' the right to enter registrations under the TLD, or must they share the right to perform registrations with other companies? Do they own the zone files?

• Will the addition of new TLDs create additional headaches for trademark owners who have already registered their names in existing domains? If a successful business was established at www.shop.com, for example, what happens when www.shop.web or www.shop.inc becomes available?

Some of the newdom participants, notably Perry Metzger, Scott Bradner, John Gilmore, and Terry Poot, opposed the creation of any new top-level domains. They favored instead the development of technical solutions that would make it possible to allow competing companies (what would later be called registrars) to register names under existing top-level domains. Many others, including Simon Higgs and Karl Denninger, favored the rapid creation of new registries like Network Solutions, but with different top-level domain names. Jon Postel supported the latter view. He was not yet convinced that a feasible method of sharing a toplevel domain had been defined. He proposed to go ahead with the authorization of new, exclusive top-level domains while working in parallel to define a feasible shared-registry model that could be implemented later. ^{[38 ]}The group followed his lead. ^{[39 ]}

The most important product of the newdom list was a draft RFC entitled 'New Registries and the Delegation of International Top-Level Domains,' more widely known simply as draft-postel (Postel 1996). Although it became the focal point of international debate on new toplevel domains for the better part of 1996, it remained an Internet-Draft and never attained the status of an official RFC. Draft-postel had two salient features. It proposed a fairly liberal, market-driven, but controlled method of allowing the top-level name space to expand in response to demand. And it proposed to use the authorization of new top-level domains to fund Postel's IANA operation. IANA would become part of the Internet Society, which would provide it a 'legal and financial umbrella.'

In the first year of implementation, draft-postel proposed to charter 50 new top-level registries, each, like Network Solutions, able to offer three new top-level domain names, for a total of 150 new TLDs. After that, ten new registries would be chartered every year; as before, each would have exclusive control of three new top-level names. ^{[40 ]}The new registries would be chartered for five-year terms and would enjoy a presumption of renewal if they provided good service. Applicants would pay a US$1,000 application fee. Successfully chartered registries would pay US$10,000 and 1 percent of their annual revenues into a fund managed by the Internet Society. ^{[41 ]}The funds would be used to provide insurance against legal or operational problems caused by the collapse of a registry and to support the activities of IANA. The fees and revenue percentages, and IANA's right to impose them, were one of the greatest sources of controversy.

To be chartered, new registries would have to meet three criteria: one pertaining to registration services, the second pertaining to operational resources such as Internet connectivity and name server performance, and the third pertaining to financial capability. These criteria were minimal and technically justifiable, and they consciously avoided any attempt to assert regulatory control over most aspects of business or technology. The proposal also specified commonsense criteria and methods for revoking or refusing to renew a charter.

6.3.3 The Top Level as Common Pool?

During the development of draft-postel, a number of the individuals in the United States who had been agitating for new top-level domains established their own 'experimental' registries. In April 1996, Eugene Kashpureff set up the AlterNIC registry and claimed the .exp, .ltd, .lnx, .med, .nic, and .xxx top-level domains as his intellectual property. Kashpureff ran his own root zone name server to support the new domains. Similarly, Karl Denninger, of the Chicago area ISP MCSNet, asserted a claim to the .biz domain, and Christopher Ambler, of Image Online Design, staked a claim to .web. In effect, a form of appropriation in the top-level name space was taking place in which operators sought to develop property rights through first-use, by establishing a registry providing name service for a selected top-level name. A de facto system of coordination and mutual recognition existed among some of these actors; they recognized each other's claims and pointed to each other's name servers. Sometime in the late summer of 1996, some of them began to sell registrations under their top-level domains.

Table 6.3 shows a list of top-level domain name applications submitted to IANA. The list was compiled by Postel in December 1996. Many of the proposed strings were predictable. There were six separate applications for .www, three applications for .sex, applications for .news, .music, and .fun. But some were more problematical. There were applications for .abc and .cbs by an individual who had no relationship to the American broadcast networks. There was an application for .euro. An applicant named Mark had applied for the top-level domain .mark, raising the possibility that the 'vanity-tagging of the Internet' that had already ballooned the .com zone might move into the top level of the domain name hierarchy.

The alternative top-level domain entrepreneurs had participated in or followed the newdom list but had fairly critical and tense relations with the IANA group. They considered IANA to be a closed aristocracy or a maddening bureaucracy. The IANA/IETF crowd viewed many of them as crass mercenaries or 'crazies.' IANA was being forced to deal with a new type of stakeholder. They were not cooperative techies with roots in academic computer science, but impatient, brash, and sometimes entirely money-minded entrepreneurs. Kashpureff, for example, was a self-taught computer whiz and community college dropout who made his first big money computerizing the paperwork for a Seattle tow-truck business (Diamond 1998). Although the final proposal in draft-postel had been adjusted to meet some of their concerns, the relationship was an awkward one.

Nothing demonstrated the awkwardness better than an attempt in July to negotiate the implementation terms of draft-postel. Postel's new toplevel domain scheme had proposed to create an ad hoc committee to receive and evaluate applications for top-level domains. On July 31, 1996, Bill Manning, an Information Sciences Institute (ISI) employee who worked with Postel on IANA functions, met with Chris Ambler, Simon Higgs, and another prospective registry operator to discuss the evaluation criteria. Manning's notes of the meeting indicate that the participants felt that a 'good faith effort' to establish a working registration service was one criterion that should be used. The issue of fees to be paid to IANA by the registries was also discussed. At the end of the meeting, Ambler gave Manning a check from his company for US$1,000, intended to serve as the application fee specified in the draft. ^{[42 ]}Later, the envelope was returned to him, unopened. ^{[43 ]}On August 2, Postel sent a message to the newdom mailing list stating, 'The suggestion that the IANA is accepting money to reserve new top-level domains is completely false.' ^{[44 ]}

Table 6.3: TLD Applications to IANA, 1995-1996

TLD Strings	Method	Time and Date	Requester
.news	Form	14 Sep 1995 00:23:26	Simon Higgs
.www	Form	15 Sep 1995 13:15:36	Chris Cain
.web	Form	15 Sep 1995 16:04:28	Scott Adams
.usa, .earth	Form	16 Sep 1995 04:22:35	John Palmer
.gvt, .npo, .isp, .uni	Form	17 Sep 1995 20:59:54	Scott Ellentuch
.plc	Form	17 Sep 1995 23:46:04	Gordon Dewis
.shop, .mall, .eat, .sex, .hot, .wow, .trash, .pub, .non, .ego, .job, .ask, .aid, .old .art, .eng, .hosp, .med, .law, .ins, .farm, .car, .air, .util, .srv, .media, .npo, .trade	Mail	19 Sep 1995 08:06:47	Jeff Weisberg
.bsn, .sbs, .ntw, .gvt, .crp, .uni, .msc, .per, .srv, .cmm, .www, .pbc, .egn, .mgf	Mail	19 Sep 1995 14:20:58	Chris Christensen
.ind	Form	20 Sep 1995 09:35:53	Marc Nicholas
.bbs, .isp	Form	22 Sep 1995 09:55:56	Gordon Dewis
.xxx, .nap	Form	22 Sep 1995 18:29	American Information Network
.carib	Form	23 Sep 1995 02:07:13	Carlo Marazzi
.biz	Form	23 Sep 1995 13:45:32	Matthew Grossman
.usa	Form	24 Sep 1995 16:57:46	Scott Ellentuch
.usa	Form	27 Sep 1995 12:51:38	Rick Mount and Chris Phillips
.www	Form	2 Oct 1995 11:41:26	David Kenzik
.biz	Form	5 Oct 1995 14:25:48	Andrew Doane
.coupons, .rebates	Form	5 Dec 1995 13:13	Simon Higgs
.web	Form	11 Feb 1996 17:06:50	Mike Lester
.alt	Form	13 Feb 1996 17:50:44	James Howard
.agr	Form	12 Mar 1996 19:21:16	Jonathan Baker
.alt	Form	20 Mar 1996 00:02:34	Gregory Massel
.dot	Mail	26 Mar 1996 20:22:22	Christian Nielsen
.eur, .euro	Mail	13 May 1996 14:32:20	Bernard de Rubinat
.inc	Mail	26 Jun 1996 14:30:10	Jace Greenman
.info, .veg	Form	26 Jun 1996 21:29:33	Das Devaraj
.alt, .live, .post	Form	27 Jun 1996 15:41:29	Michael Dillon
.biz	Form	1 Jul 1996 09:47:41	Karl Denninger
.web, .auto, .www, .car	Form	1 Jul 1996 18:47:	Chris Ambler
.corp, .music		3 Jul 1996 21:00

(118 other TLDs) applications listed until 26 Nov 1996

^{[31 ]}An English company from Manchester, Fast-net Developments Ltd., applied to IANA for the top-level domain for Libya, .ly. Fast-net Development's owner, Kalil Elwiheishi, was listed as the administrative contact for the .ly domain with an address in Tripoli, which appears to fulfill IANA's residency requirement. The owner's real residence was England, but IANA lacked the capacity to monitor such things. A British company, NetNames, acted as collector of registration fees for .ly, which it split with the administrative contact. Such arrangements were not at all uncommon with other developing country ccTLDs.

^{[32 ]}The small nation of Niue (.nu), for example, allows its ccTLD to be administered and marketed by a 'nonprofit' foundation. Both .nu and the ccTLD for the Cocos and Keeling islands (.cc) are marketed commercially and globally as an alternative to generic TLDs. In a few cases, a happy coincidence allows the ccTLD to function as a kind of generic TLD. The ISO code for Tuvalu, for example, is .tv; for Moldova, the code is .md. .tv was subdelegated to Idealab, Inc. and marketed commercially.

^{[33 ]}For an account of the Haiti (.ht) delegation crisis, see John S. Quarterman, Matrix News 7 (December 1997).

^{[34 ]}It was not unusual to see on various email lists disapproval of the idea that 'everyone wants their own domain' and the opinion that DNS was 'never designed' to provide that. See, for example, Joe Provo: 'The problem is-and always has been-inappropriate registering. The 'joes-bar-and-grill.com'-style registering is wildly inappropriate and was (mostly) avoided by ordinary pressures until the ‘anything for a buck' providers entered the game.' Email to newdom list, October 25, 1995, <http://www.iiia.org/lists/newdom/>.

^{[35 ]}See IAB minutes, August 1995, <ftp://ftp.iab.org/in-notes/IAB/IABmins/IABmins.950808 >.

^{[36 ]}'No one has really objected to paying reasonable fees for registration. EVERYONE (almost) has objected to paying fees set arbitrarily by a group which contains and considers little or no input from the community in the process and is not restricted to any public comment period or public regulation regarding future fee levels.' Owen DeLong, email to newdom list, September 20, 1995, <http://www.iiia.org/lists/newdom/1995q3/0323.html >. However, the Internet Architecture Board minutes for October 13, 1994, note, 'There was an NSF-sponsored meeting on this issue [charging], which concluded that a charging model should be developed for registration services (on a yearly maintenance basis).

^{[37 ]}Email, Postel to [e-mail], September 15, 1995, <http:// www.wia.org/pub/postel-iana-draft13.htm>.

^{[38 ]}'So I would suggest we proceed on two fronts in parallel: (1) to look at ways a single TLD could be shared between two or more registries without a single central mechanism, and (2) to look at the procedures we would set up to establish new registries and new TLDs without such sharing. If we find a good way to support the sharing we will update the procedures to include it.' Email, Postel to newdom, October 19, 1995, <http://www.iiia.org/lists/newdom/1995q4/0009.html>.>.

^{[39 ]}An IETF Working Group on shared TLDs was formed and met at the Dallas meeting in December 1995, producing a draft.

^{[40 ]}The $10,000 fee varied across different drafts, starting at $100,000 and going down to $2,000 in one iteration.

^{[41 ]}The significance of this exchange is disputed. Ambler maintains that Manning watched him write the check and understood that it and the accompanying paperwork constituted a formal application for permission from IANA to run an experimental registry. Postel and Manning strongly disputed this statement, contending that the envelope was presented to Manning in a manila folder along with other papers from Ambler and that he did not discover it until after Ambler left the meeting.

^{[42 ]}The fact that the envelope was unopened tends to support Ambler's version of the story-how could the IANA staff have known that it contained money if they never opened it?

^{[43 ]}From Thom Stark, 'The New Domain Name Game,' 1997, <http://www.starkrealities.com/iahc.html>.

^{[44 ]}IAB minutes, October 1994, <ftp://ftp.iab.org/in-notes/IAB/IABmins/IABmins.941013 >.

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