Technology Law Column

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Published in the Chicago Daily Law Bulletin, May 8, 1997 at page 5.

Obscure Experiment of Naming Domains.

Copyright 1997 by David Loundy

Most of my Internet-related articles do not involve leaked State Department cables, protested meetings in Geneva, or people with titles like Secretary-General. However, a bunch of people who really are trying to be helpful have just set the stage for a major international brouhahah over the future of Internet management.

At issue is the Internet domain name system-- which needs a bit of an overhaul-- the registrars of domain names (and how they are selected), and how to establish an expanded system that will lessen trademark conflicts between entities that either want to use, or want others to refrain from using, certain Internet addresses.

As background, the domain name system (and, in fact, the Internet itself) originated from Department of Defense funded research. As the Internet grew, control of top-level domain names (such as .com, .edu, and the like) has been passed around with the Internet Assigned Numbers Authority having control over the naming system (which is actually implemented by a number of top-level domain registries). Each country with a two letter top level domain (such as .mx for Mexico or .us for the United States) has a registry, plus there are a number of "generic" international top level domains (.com, .edu, .org, etc.) which are maintained by the National Science Foundation (NSF), which, in turn, licenses Network Solutions, Inc. (NSI) to perform the registry functions. The NSF-NSI contract is set to expire in 1998. This brings us to the current events at hand.

A group of individuals, who happen to be members of organizations such as the Internet Society, The International Telecommunications Union, the World Intellectual Property Organization, the International Trademark Association, and the Internet Assigned Numbers Authority recently met as the "International Ad-Hoc Committee" (IAHC) to examine and propose changes to the current domain name system. The need for change is a result of crowding of the ".com" top level domain (TLD)-- one side-effect being increased trademark litigation over companies "hoarding" second-level domain names (such as or that match other companies' trademarks, as well as litigation between parties that may have equal trademark rights to the same domain name.

The IAHC published its final recommendations on February 4 of this year. The recommendations call for the creation of seven new top-level domains, a lottery system to choose an initial 28 new registrars to assign names in these new TLDs (with registrars sharing authority to register in a particular domain, avoiding the conveyance of a monopoly such as NSI currently enjoys), it also provides for the creation of a Council of Registrars, a Policy Oversight Committee, a Policy Advisory Board, and a Memorandum of Understanding to be signed by all registrars and including a conflict resolution procedure.

Since releasing its recommendations, the IAHC has been trying to drum up support for its proposals and to convince various entities to agree to sign its Memorandum of Understanding, thereby agreeing to the proposed scheme to revamp the domain name system. The IAHC then set a meeting for April 29-May 1 in Geneva, Switzerland, hosted by the International Telecommunications Union (ITU) to discuss the proposals which culminated in a big signing ceremony for those agreeing to sign the IAHC's Memorandum of Understanding.

Some people were not thrilled with the IAHC's suggestions. Image Online Design, a California Internet Service Provider had already been using the ".web" TLD experimentally. The service provider sued some of the IAHC members in order to prevent implementation of the new scheme which called for the creation of the "new" .web top level domain-- which the service provider claimed it was already using with the previous approval of the Internet Assigned Numbers Authority.

Another person who did not like the proposed plan or the way it was to be implemented was Tony Rutkowski, an adjunct professor of law at New York Law school who teaches international telecommunications law and is former Chief of International Telecommunication Regulations and Relations Between Members at the ITU. He filed a brief before the U.S. Department of State, the Federal Communications Commission, the National Telecommunications and Information Administration, the Register of Copyrights, and the U.S. Patent and Trademark Office-- all agencies which he believes have constitutionally delegated responsibilities in this area which would be unlawfully conveyed away by the IAHC. Rutkowski argues that the IAHC Memorandum of Understanding amounts to an intergovernmental agreement effected under the auspices of two United Nations agencies which will have significant force in international law, that the Memorandum is unnecessary, was not created properly, and was not even created by a legal entity.

In the meanwhile, various other groups, including the National Science Foundation, have also been considering changes to the domain name system. This resulted in the monumental announcement in mid-April that the National Science Foundation intends to withdraw from the domain name registry business, and that it will not renew NSI's contract in 1998. NSI subsequently told The Washington Post that has no intention of sharing the registering authority over the TLDs it administers with anyone.

Perhaps precipitating the NSF's announcement was a letter sent from the European Commission to the U.S. federal government criticizing the IAHC proposal. The European Commission approved of the IAHC proposal's recognition that Internet "domain space" is an international trust, that trademark rights need to be addressed, that there must be an open and international management structure for the Internet, and that the U.S. is not making proper use of its top-level country domain (.us), unlike most of the rest of the world's countries. The European Commission, however, found fault with the IAHC in that that the IAHC did not include any official European representation. In addition the European Commission stated that such important matters require more time for (European) consideration, that the various proposed policy entities do not promise significant European participation, that the new structure would not encompass the already existing TLDs, and a number of other complaints. The letter then asked for the U.S. government's position on these matters and called for dialog between the parties.

This brings us to the leaked State Department cable, in which, according to C|Net News, an online news organization, Secretary of State Madeline Albright expressed concern that the Secretariat of the ITU was funding and convening the Geneva meeting where it might be entering into an international agreement-- all without the consent of the ITU's member states or the organization's ruling council. The cable also stated that the U.S. was currently considering various proposals to change the domain name system.

Nonetheless, the meeting and signing ceremony occurred on schedule. However, the signatures of WIPO and the ITU were noticeably missing. Signing the Memorandum of Understanding were 57 entities of various sizes, including Digital Equipment Corp. and MCI Communications. The Secretary-General of the ITU, Dr. Pekka Tarjanne announced that the signing was an example of a new paradigm the doctor termed "voluntary multilateralism."

The day after the signing, the U.S. government, through a member of the White House's Interagency Task Force on Domain Names, stated that the U.S. would not support the IAHC's voluntary multilateralism, and that the U.S. does not approve of the IAHC's plan-- which might unintentionally create an intergovernmental authority that might regulate content or tax commerce on the Internet, something the Clinton administration has opposed. The official, as reported by C|Net, also reiterated many of the concerns mentioned in the European Commission's letter.

Along with the European Commission and the U.S. government, organizations such as the Internet Service Providers Consortium, the Commercial Internet Exchange, and the Domain Name Rights Coalition have come out against the IAHC policy, even past supporters of the IAHC, such as PSINet, a major U.S. Internet provider, have switched camps and come out against the IAHC plan.

Some attention is being paid to the criticism of the IAHC system. Shortly after the signing, the IAHC established Interim Policy Oversight Committee announced that it is looking for alternatives to the lottery system for choosing registrars, and is considering removing the limit on the number of registrars to be initially allowed.

What does all of this mean? It means that the IAHC has arrogantly misjudged its support and its momentum. It means that articles discussing the IAHC and the related controversy have begun mentioning the group in the same breath as the widely ignored AlterNIC-- a group that is already "experimentally" running registries for top level domains of its creation (including the .web TLD at issue in the Image Online Design case).

The IAHC means well and has at heart fundamentally important concerns for the future of the Internet and its regulation. Some international agreement, especially in areas such as international trademark dispute resolution, is in demand. However, without the support of a majority of Internet providers, or access to Network Solutions' domain name database, the IAHC-endorsed system will simply be ignored, just as the AlterNIC experimental top level domains have been ignored by 98% of all Internet providers, thus relegating the IAHC's top level domains and dispute resolution procedures to the status of an obscure experiment.

Regardless, the domain name issue will only continue to garner increasing attention-- there will be more trademark disputes, and there will be visible fallout resulting from the National Science Foundation's withdrawal from the domain name business.

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