August 25, 1999 5:00 AM PDT
Rival domain plans to clash at global conference
The so-called domain name dispute resolution policies may seem like lofty legalese to Net users, but they are significant because any widely adopted plan stands to dramatically alter the rights to Net names ending in ".com," ".net," and ".org," which are gateways to business and personal expression on the Net.
The new dispute resolution policy would be implemented by more than 60 domain name registrars selected by the Internet Corporation for Assigned Names and Numbers (ICANN) to compete with Network Solutions, the world's primary registrar thanks to a six-year government contract now being phased out. In November, ICANN signed an agreement with the Commerce Department to privatize administration of the Net's address system.
Domain names historically have been handed out on a first-come, first-served basis. In countless examples, giant corporations have struggled to repossess their names from lesser-known domain registrants, who may or may not have been interested in negotiating. Some scraps end up in court, while others have ended amicably.
In what will be one of the most closely watched agenda items, ICANN is trying to set up a consistent policy on how to handle these disputes and is scheduled to address the issue tomorrow.
At least two drafts are being floated; both would require Net name registrants to submit to a speedy third-party arbitration proceeding if someone were to challenge the use of a name.
The World Intellectual Property Organization's widely circulated proposal aims to curb "cybersquatting," the practice of registering scores of domain names in hopes of reselling them to top bidders. The WIPO paper also includes a controversial provision that gives special rights to "famous" trademark holders around the globe, but that piece will not be dealt with by ICANN at this meeting.
A 15-person ICANN working group reviewed the plan over the past month and a half and made some minor changes. Some complained in preliminary meetings here that the ICANN process was rushed and lacked public input, and that the working group left WIPO provisions in place that favor big business over mom-and-pop businesses and individuals.
Others want to see a policy adopted now before more registrars come online.
"If [people] don't want to go to court over a domain name, they can start the process online and get rapid dispute resolution at a fraction of the cost," explained attorney Jonathan Cohen, who cochaired the ICANN working group. "WIPO did a ten-month process--we're not supposed to open up a whole new can of worms here."
NSI's alternate plan
WIPO's draft was expected to gain easy adoption, but NSI is backing an alternative plan.
NSI, which has not signed an accreditation agreement with ICANN and is therefore not under a contractual obligation to adopt the body's policies, says it supports a dispute resolution policy that was drafted with the help of about a dozen ICANN-accredited registrars and spearheaded by America Online and Register.com.
Like the WIPO paper, the policy would revoke the ownership of names registered in "bad faith." However, the registries' plan offers a clearer definition of "bad faith." For example, registrants could be called into arbitration if a complainant can show that they have a pattern of offering to sell a Net name to a trademark holder or "preventing" trademark holders from reserving their company's ".com" name. Registrants also would have to take steps to ensure they aren't staking claim to a domain name that infringes on a registered trademark.
"While this process is mandatory if invoked, nothing prevents a domain name holder or a complainant from going to court before the administrative proceeding is commenced," NSI's draft policy states.
An administrative panel made up of an international body such as WIPO or legal experts around the globe would review and decide the case, and both parties would pay a fee under the registries' plan. By contrast, the WIPO proposal calls for the arbitration body to decide who will pay for the proceeding, and the cap could be set around $875 for mediation--a price proponents say is much less expensive than a court battle.
NSI's current domain name dispute policy has been widely criticized in the past for favoring big business and those who can afford costly lawsuits. Names can be put on hold for 60 days without payment, allowing "speculators" to shop names around for resale buyers before they even own them. But both the NSI-backed plan and WIPO's plan call for names to be paid in advance, and the NSI-backed proposal would reverse its policy of putting names on hold until disputes are settled.
Although much work has gone into the WIPO paper, and ICANN's government advisory committee (GAC) urged its adoption, the registries' proposal will gain ground because the company already has terms of service agreements for more than 5 million Net name registrants who will be affected by any plan.
"What we did is an example of building the record for consensus and documenting that those who have to implement the policy actually support it," said Don Telage, senior vice president of NSI. "This is what ICANN is supposed to be doing."
Who will keep an eye on ICANN?
Another important task facing ICANN during the next two days is that of signing off on blueprints to allow everyday Net users and noncommercial entities to participate in its policy-making process and to elect its board members. By its November meeting in Los Angeles, ICANN wants to have a framework in place for electing people to nine new board seats.
But first, an at-large membership has to be set up, and money has to be found to finance the election. An ICANN staff report suggested that the at-large body--to be made up of regular Net users--be geographically diverse and consist of 5,000 people.
This fourth international ICANN conference also marks the first time the body will open up its board meeting to the public in response to criticism from Congress and the Clinton administration.
"I hope people will see that we aren't devious, and it's a struggle to come up with ways to handle how to do this," said Esther Dyson, chair of ICANN's interim board.
However, ICANN's Government Advisory Committee meeting was closed yesterday--as past meetings have been--sparking new criticism by conference attendees over the transparency of ICANN.
"It's outrageous. People from the Net community had the impression all of these proceedings would be open," said Theresa Amato, of Ralph Nader's Citizen Advisory Center.
Dyson, as well as Commerce Department official Becky Burr, who sits on the committee, both maintained that the advisory body acts independently of ICANN and can come up with recommendations behind closed doors, although ICANN will vote on any plans in public.
"The [Government Advisory Committee] is not an ICANN meeting--it just advises us," Dyson said.