Sri suggested I forward my ga comments on Working Group A to IDNO with a brief description of what WG-A is.
Here goes: Working Group A just completed its review of Section 3 of WIPO-RFC 3 -- this is the dramatic part
that deals with the administrative dispute resolution (ADR)procedure proposed for ICANN.
The ADR provides for the following:
* Mandatory: registrants have to agree to it via contract, as with NSI.
* Will only deal with 'abusive registrations' (which are defined badly)
* Will use an alternative dispute resolution service provider (sounds like a university).
* Optional arbitration permitted
* Decision will be enforceable. Individuals can appeal to courts
* Decision rendered in 45 days. Decision will not include altered names, gateways, etc.
* Complainant pays a fee plus an advance against costs.
* Panel will allocate costs among disputants as it sees fit
* No appeal to ICANN
* Decision is enforced 7 days after handed down unless individual appeals to court and gets
a court order.
Working Group A's recommendations are posted for public comment until July 24 on the dnso site. (I posted mine on
the ga-discussion list, but will put them in the right place shortly.)
Here they are:
----------
> Date: Thursday, July 08, 1999 03:53:45
> From: d3nnis
> To: ga@dnso.org
> Subject: [ga] Comments on the Preliminary Report of Working Group A
>
>
> Working Group A obviously did a lot of work on this topic, and my concerns
> below in no way diminish my appreciation of that fact.
>
> However, I am troubled that the preliminary conclusions of July 7, 1999
> were confined to very specific subquestions which did not address the broader
> issues of appropriateness, fairness, and overall balance -- all of which
> are essential to any attempt at democratic governance of the Internet.
>
> If ICANN were to adopt WIPO Section 3 including the commentaries of Working
> Group A, it would be permitting its strong obligation to protect the
> intellectual property rights of large businesses to overshadow its equally
> strong obligation to protect the property of individuals and small
> businesses. It would achieve this effect by having elevated domain names
> to the status of trademarks.
>
> Domain names at present are not trademarks under US or international law.
> They are a locator, like an address or a phone number, and they should be
> given a commensurate level of respect and protection by ICANN. They are
> both free speech and private property -- as well as a limited resource.
>
> The US Government is constrained from depriving anyone of these speech or
> property
> rights without meeting strict due process restrictions. While private, ICANN
> is
> acting in this instance as a government in that it is exerting absolute
> control over a major channel of interstate commerce, and in so doing is
> requiring individuals to waive their First and Fifth Amendment rights as a
> condition of being permitted to speak and to conduct business on the
> Internet. At the very least, ICANN should observe the same restraint as
> the US Government, which in this case would not attempt this action without
> a Constitutional amendment, specific Congressional authorization, or Senate
> ratification of a treaty negotiated by the President.
>
> Raising domain names to the status of trademarks -- and thereby imposing
> significant
> restrictions on their use -- is something that only a government may do.
> Without a
> national or international mandate in hand, in my opinion, ICANN should
> exercise
> great caution before taking such a step. Moreover, it is not even
> necessary to
> broach this legal issue at this time simply to create a uniform dispute
> procedure. Doing so could well harm ICANN at this crucial stage of its
> existence.
>
>
> In order to ensure that ICANN's policy does not unduly burden interstate
> commerce , or violate the speech and property rights of small businesses
> and individuals, I respectfully urge Working Group A to request the Names
> Council
> and the ICANN Board to acquire a legal review of the following
> questions prior to issuing a formal recommendation:
>
> a) Does the proposed administrative dispute resolution procedure require the
> consent of each national government whose intellectual property laws
> do not currently classify domain names as trademarks?
>
> b) Can ICANN and WIPO request the General Assembly of the United Nations to
> convene an international conference on the Law of the Internet for the
> purpose of drafting an international
> convention on domain names that is consistent with the national laws of
> participating states?
>
> c) Does anything in the existing NSI dispute procedure preclude ICANN's
> adoption of that procedure until ICANN has acquired a detailed analysis of
> the legal considerations associated with direct intervention in trademark law?
>
> Submitted with thanks to the members of Working Group A.
>
> Dennis Schaefer
> d3nnis@mciworld.com
>
>
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