Chapter 11: Global Rights to Names

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Overview

'Tis but thy name that is my enemy.

-Shakespeare, Romeo and Juliet

In Shakespeare's play Romeo and Juliet two clans, the Montagues and the Capulets, are locked in a blood feud. Romeo, a Montague, falls in love with a woman of the Capulet family. His predicament causes him to muse on the significance of names-''tis but thy name that is my enemy'-and he utters the famous lines, 'What's in a name? That which we call a rose by any other name would smell as sweet.' But Shakespeare knew well what was in a name. Although the names themselves are arbitrary, they are markers of powerful social boundaries. Whether you were tagged Montague or Capulet was a matter of life and death. In the end, the names won and the lovers lost.

Intrinsically, not much is in domain names. Their value as locators, identifiers, and navigation aids is very much overrated. After being the focal point of global institutional change for more than six years, however, they are being made into territorial markers of great commercial and geopolitical significance. One of the most aggressive players in this drama is the World Intellectual Property Organization (WIPO). The once-obscure organization is trying to enter into a symbiotic relationship with ICANN, wherein WIPO provides the policy initiative for minting new rights in names and ICANN provides the control points for implementing and enforcing them. The dirty little secret of the whole affair is that domain names are not nearly as valuable or as important as the new institutional regime would like to pretend they are. Domain name policy is really a proxy war. Extraordinary claims over the control of words and names are being advanced in the arena of Internet domain assignment because it is hoped (or feared) that it will set precedents for the treatment of the entire online economy. For WIPO and the intellectual property interests, the domain name space has become the site for this proxy war, not because of its intrinsic importance but because it is turf that can actually be controlled, because of the centralized nature of the root.

That all this weight is being placed on a system of computer identifiers that is distributed, hierarchically organized, and asks of names only that they be unique is one of the key weaknesses in the emerging regime. Never before has so much regulatory firepower been concentrated on a resource so ill-suited for the task. The attempt to vest the humble domain name with an increasingly regulated, official status would be comical if it were not so dangerous and costly. Nevertheless, this anomaly tells us something important about institutionalization processes. Institutions, once ensconced, can redefine technical systems to suit their own purposes, foreclosing technical possibilities and lines of business development that are inconsistent with maintaining the regime.

This chapter has two objectives. The first is to demonstrate that control of the DNS root is being used to create new and expanded rights to names. In the institutional response to the domain name-trademark interface, a common refrain is that the goal is only to preserve existing rights. But the property rights in names that are being created by the new global regime are often stronger than, and always quite different from, traditional legal rights in names.

The second objective of the analysis is to demonstrate how ill-suited domain names are as a vehicle for advancing an expansive property rights agenda. Highly unrealistic assumptions must be made about the use and interpretation of domain names on the Internet in order to justify the new rights and the regulatory regime needed to enforce them.

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