Chapter 9: The New Regime

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  1. ICANN's management and staff had prepared draft guidelines for accreditation by February 8, 1999, even before it was officially designated 'NewCo' by the Commerce Department. The board adopted the draft a month later.

  2. Among other things, accredited registrars committed themselves to 11 WIPO recommendations, including contractual features requiring transfer of a disputed domain name, agreement to exclude second-level names designated by ICANN, payment for registrations in advance, and the domain name holder's consent to jurisdiction. ICANN, 'Guidelines for Accreditation of Internet Domain Name Registrars and for the Selection of Registrars for the Shared Registry System Testbed for .com, .net, and .org Domains,' February 8, 1999, Section II.K, 'Intellectual Property Issues.'

  3. CORE, the organization of registrars left over from the gTLD-MoU, was accredited as one registrar despite the fact that it consisted of a consortium of 88 different registration service providers. France Telecom, a gTLD-MoU signatory, and AOL, a GIP member, had both donated US$25,000 in start-up funding to ICANN and were vocal supporters of it in the final stages of the Commerce Department proceeding. Melbourne IT was also a CORE member and was closely tied to the Australian National Office of the Information Economy.

  4. Amendment 13 to the Commerce Department-Network Solutions Cooperative Agreement, NCR 92-189742, < amendment13.htm>.

  5. Andrew Pincus, General Counsel, Commerce Department, to Thomas Bliley, Chairman, House Commerce Committee, July 8, 1999, p. 15.

  6. ICANN News Release, 'ICANN Names Competitive Domain-Name Registrars,' April 21, 1999, <>.

  7. 'Network Solutions Announces 14th Consecutive Quarter of Record Profitability-Cash from Operations Exceeds $118 million,' Business Wire, April 27, 2000.

  8. Ibid.

  9. See, e.g., House Committee on Commerce News Release, 'Bliley Blasts ICANN Management of Domain Names, Questions Authority to Levy Domain Name Tax,' June 22, 1999. Bliley chaired the House Commerce Committee.

  10. Section II(K) of ICANN's Registrar Accreditation Agreement, <>.

  11. In a case involving the domain name, Judge Young ( Massachusetts District Court) held that no declaratory judgment was available to the registrant, not even under the Anticybersquatting Consumer Protection Act, if the victorious party in the UDRP (the trademark holder) disclaimed any intention to file a trademark lawsuit of its own. There being exactly that disclaimer, he then dismissed the case for failure to state a claim.

  12. A 'Petition to ICANN and the U.S. Department of Commerce,' May 1999, objecting to the adoption of WIPO recommendations without any action by the DNSO was signed by 86 prominent people from the legal, technical, and policy communities, including four members of WIPO's panel of experts. < >.

  13. Michael Palage, chair, 'Working Group B Report,' submitted to the DNSO Names Council April 17, 2000. In its summary of consensus points, the report noted, 'There does not appear to be the need for the creation of a universally famous marks list at this point in time,' and 'There appears to be a consensus that protection afforded to trademark owners will depend upon the type of top-level domain.'

  14. WIPO actively promoted adoption of the UDRP among ccTLD administrators. ICANN attempted to tax the ccTLDs, and the Commerce Department, in GAC meetings, urged that the 'quasi-generic' ccTLDs be regulated like Network Solutions. <>.

  15. U.S. Congress, House of Representatives, Committee on Commerce, Subcommittee on Oversight and Investigations, July 22, 1999, Thomas Bliley (R., Virginia), Chairman.

  16. In late August 1999, MCI loaned ICANN US$500,000 and Cisco Systems loaned it US$150,000. See J. Niccolai, 'ICANN Survives on Corporate Dole,' The Industry Standard, August 20, 1999, <,1902,6037,00.html >.

  17. The July 22, 1999, hearings were a disaster for Network Solutions, as Democratic representatives spotlighted its monopoly rather than ICANN's authority. Leading up to it, ICANN officers initiated meetings with White House aide Thomas Kalil, seeking help raising funds, and FTC antitrust probes against NSI were initiated.

  18. 'Approved Agreements among ICANN, the U.S. Department of Commerce, and Network Solutions, Inc.,' November 10, 1999, < >.

  19. Revised Verisign registry agreements, April 16, 2001.

  20. NTIA, 'Domain Name Agreements between the U.S. Department of Commerce, Network Solutions, Inc., and the Internet Corporation for Assigned Names and Numbers (ICANN),' fact sheet, September 28, 1999, <http://www.ntia.doc. gov/ntiahome/domainname/agreements/summary-factsheet.htm>.

  21. The Green Paper, in discussing 'representation,' referred to 'membership associations' representing 'Internet users' as deserving representation on the board of a new corporation. The White Paper has said that the new organization should be 'representative of Internet users around the globe.'

  22. 'Application to Become the Domain Name Support Organization, pursuant to Art. I, Section 3(b) of the Bylaws of Internet Corporation for Assigned Names and Numbers (the 'Corporation'),' February 9, 1999. The organizations submitting the proposal to ICANN were listed as Electronic Commerce Europe (ECE), European ISP Association (EuroISPA), Information Technology Association of America (ITAA), International Chamber of Commerce (ICC), Internet Council of Registrars (CORE), International Trademark Association (INTA), Internet Society (ISOC), Policy Oversight Committee (POC), World Information Technology and Services Alliance (WITSA).

  23. Individual Domain Name Holders Constituency, April 23, 1999, petition to ICANN board for recognition, <>.

  24. In her October 20 letter to the ICANN management, Commerce Department official J. Beckwith Burr noted, 'Many commenters expressed the view that the principles of private, bottom-up coordination and representation set out in the White Paper are unlikely to be achieved in the absence of some type of membershipbased structure. We believe ICANN should resolve this issue in a way that ensures greater accountability of the board of directors to the Internet community.'

  25. The report adduced the following reasons for an at-large membership: to reflect the global diversity of users (membership should not be limited to IP address or domain name holders); to ensure that ICANN's corporate structure operates for the benefit of the Internet community as a whole, is not captured, and continues to provide fair and proportional representation of the entire user community; to provide input from the user community to the ICANN directors and management. MAC Report, Berlin meeting, May 26, 1999.

  26. ICANN Staff Report, 'Statutory Members vs. Nonstatutory Members for the ICANN At-large Membership,' August 11, 1999.

  27. ICANN Bylaws, Article II, ß{\!s}1.

  28. Axel Steuerwald, 'Mueller-Maguhn CANN; From Anarchist-in-the-making to Euro Net Lord,' USC Annenberg Online Journalism Review, November 7, 2000, <>. Kieren McCarthy, 'Anarchist Hacker voted onto ICANN Board,' The Register, November 10, 2000, <>.

  29. The Names Council itself was unable to agree on the numbers proposed by the working group. Its resolution called for 'introduction of new gTLDs in a measured and responsible manner, giving due regard in the implementation of that policy to (a) promoting orderly registration of names during the initial phases; (b) minimizing the use of gTLDs to carry out infringements of intellectual property rights; and (c) recognizing the need for ensuring user confidence in the technical operation of the new TLD and the DNS as a whole.'

  30. ICANN staff, 'Criteria for assessing TLD proposals,' August 15, 2000, <>.

  31. U.S. Congress, House of Representatives, Committee on Energy and Commerce, Subcommittee on Telecommunications, W. J. Tauzin, Chairman, February 8, 2001, Hearings on 'Is ICANN's New Generation of Internet Domain Name Selection Process Thwarting Competition?'

  32. Australian Senator Alston, in the final comment period on the ICANN proposal, expressed concerns about 'the authority of national governments to manage or establish policy for their own ccTLDs.' Letter, Senator Richard Alston to William Daley, Secretary of Commerce, October 8, 1998. In her October 20 letter to the interim board designees, Commerce Department official J. Beckwith Burr asked ICANN to provide assurances about their intentions regarding ccTLD management. ICANN's response confirmed that governments would have such authority but cautioned that the 'details of implementation . . . may be complex' and implied that it would look to guidance from the GAC on that question. Dyson to Burr, November 6, 1998.

  33. Leadership of the GAC came primarily from representatives of governments and intergovernmental organizations activated either by the gTLD-MoU or by the Green Paper: Paul Twomey of Australia, Robert Shaw of the ITU, Christopher Wilkinson of the EC, and Francis Gurry of WIPO. The initial list of names inviting governments to send representatives to meetings was drawn from the ITU.

  34. At the Berlin meeting of ICANN in May 1999, the GAC communiquÈ asked ICANN to reassign 'with the utmost promptness' ccTLD delegations of ' external and dependent territories' upon request of the 'relevant public authority or government.' GAC communiquÈ, May 25, 1999. 'The GAC also reaffirmed that the delegation of a ccTLD Registry is subject to the ultimate authority of the relevant public authority or government,' GAC communiquÈ, August 24, 1999.

  35. Interview with Dennis Jennings, June 28, 2000, 'Best Practice Guidelines for ccTLD Managers,' ccTLD Constituency of the DNSO, June 12, 2000, section 3.1.

  36. ICANN, Draft Final Report, President's Task Force on Funding, October 31, 1999.

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Ruling the Root(c) Internet Governance and the Taming of Cyberspace
Ruling the Root: Internet Governance and the Taming of Cyberspace
ISBN: 0262134128
EAN: 2147483647
Year: 2006
Pages: 110

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