11.5 DNS vs. WIPO

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To conclude, common pool conditions in the domain name space upset existing institutional methods of controlling how and by whom names can be used. This was true not just of trademark owners but also of celebrities, political candidates, governments, and various organizations (mostly in Europe) supporting controlled appellations of origin. What started as a conservative reaction aimed at safeguarding older systems of control over names established by territorial institutions, however, has mutated into a radical program to create a new, global regime for the protection of new property rights in names. WIPO, and to a lesser extent ICANN, believes that control of the root of the domain name system has created a historic opportunity to define and implement such a regime. Their objective is to curtail the free adoption of names and transform domain names into a controlled vocabulary that gives a handful of privileged players-major trademark holders, international organizations, governments-sweeping rights over Internet identifiers.

This much is clear: the DNS protocol as it was traditionally implemented encourages and supports free expression. The protocol was designed merely to coordinate the assignment and resolution of multifarious name adoptions on the Internet. It was not structured to regulate their semantics or to provide users with a directory. The whole point of the protocol was to allow users to create their own semantics while ensuring that the names remained unique. DNS's hierarchical delegation of authority allows the same label to show up in thousands if not millions of different places, under different top-level domains or second-level domains or thirdlevel domains or even or the right-hand side of a URL. Because responsibility is distributed down the levels of the hierarchy, there is room for vast amounts of variation in the policies and practices used to create naming conventions and assign names. Moreover, since the DNS name space is virtually inexhaustible, users have an extraordinary amount of flexibility to adopt whatever label they like. As long as it is unique it is available. DNS doesn't care whether the label is 'confusingly similar' to a trademark or whether the person who adopted it has any authoritative connection to the referent. And the costs of entering a registration and propagating it throughout the Internet's intricate web of name servers are so low that anyone who can afford a PC and Internet access can probably afford to have their own domain name(s) as well.

To turn domain names into a controlled vocabulary is like pushing a heavy rock uphill. One must constantly work against nature. One must supplement the mechanical uniqueness enforced by DNS with exclusions, rules, and dispute resolution procedures to create what Jon Postel called a kind of 'higher-order uniqueness'; one must undermine or abolish its hierarchical structure. In a fundamental sense, the ICANN-WIPO regime is at war with the DNS protocol itself.

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