Subject: GA-DIGEST V1 #640
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST            Monday, July 30 2001            Volume 01 : Number 640

----------------------------------------------------------------------

Date: Sun, 29 Jul 2001 21:21:33 +1000
From: "Dassa" <[email-masked]>
Subject: [ga] Domains are not a property but can be classed as an asset

Perhaps it may be beneficial if I state how I see domain names in the
context of property.

To me, domain names are a service that is licensed from the appropriate
body who controls the TLD.  This applies to all levels of domain names.
From the root through the TLD's, 2LD's and so on.

Each license may have any number of restrictions applied by the body that
issues the registration of the license.

The license to use a domain name is tied to the specific domain name, it
can be classed as an asset with value added to the domain name through
various means after registration.  Much like the old fashioned "good will"
asset of a business.

An asset does not necessarily have any associated property rights.  In the
case of domain names, the only rights are those granted under the license
of registration.

All the cases I have seen so far through the legal system support this
concept of a domain name being an asset but not an intrinsic property in
its own right.  Even intellectual property rights regarding domain names
are discounted as external considerations such as trademarks and other
factors are valued far higher than any inherent IP associated with the
creation of the domain name.

Darryl (Dassa) Lynch.

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Date: Sun, 29 Jul 2001 15:11:45 +0200
From: Jefsey Morfin <[email-masked]>
Subject: Re: [ga] Consumer/Registrant Protection Consitituency 

Dear Joop,
I think you/we should give up all this.

The general "correct" thinking seems to be bound to consider Internet 
participants as "consumers". A consumer means a product and obvsiously the 
AmerICANN would be the producer and the regulator. A consumer means a 
receiver and not a producer what every Internet partisicpant is first.

Such a scheme is so much foreign to the mission of the AmerICANN and to 
nature and the use of the true Internet (I do not consider its e-legal 
version by Louis Touton nor the niche it is for VeriSign) that I think we 
should let it develop untill the whole operation collapses.

Any effort to support an AmerICANN which should probably be a compromise 
between the three options proposed by the ALSC 
http://www.atlargestudy.org/template.shtml will be a failure because it 
will have no coherence with any identified purpose. It would only help 
delaying a necessary refundation.

Jefsey

On 07:01 29/07/01, Joop Teernstra said:
>At 12:06 29/07/2001 +0800, erica wrote:
>
>>NAME:
>>If there is general agreement that we need a constituency whose job is to
>>ensure that the interests of consumers of domain names (Registrants)
>>interests are protected, then its a good idea to ensure that's reflected in
>>the name:  ie. Lets call the proposed new constituency the
>>Consumer/Registrants Protection Constituency (C/RPC)
>
>Dear Erica,
>Whilst I agree with some of your observations, I I have a problem  seeing 
>Domain Name Registrants as consumers.
>An Individual Registrant  does not register a Domain Name to consume it.
>One registers it to own it (or to hold it, if you wish), and to build it 
>up as an asset or an Internet presence.
>Or perhaps to otherwise exercise rights normally associated with the 
>ownership of an asset.
>
>There is much more involved than simply protecting consumers against being 
>ripped-off.
>ICANN is being set up as the wielder of power over Internet presence or 
>non-presence.
>
>In order to make the constituency really representative in ICANN , one 
>wants a constituency of the Holders/Owners themselves, as Individual Human 
>beings (who as content providers have concerns way beyond those of mere 
>consumers), not  as a constituency of "protectors" or organizations that 
>purport to protect.
>These, if truly non-commercial, should be represented in the NCDNHC.
>
>For the IDNH, the challenge is the construction of membership driven 
>institutions, that can truly scale.
>
>
>
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Date: Sun, 29 Jul 2001 09:42:48 -0400
From: Sotiris Sotiropoulos <[email-masked]>
Subject: Re: [ga] Domain names as observed (was Tucows Response to   Cochet     tiTransfer Letter)

"William X. Walsh" wrote:

> Hello Sotiris,
>
> Sunday, July 29, 2001, 2:31:22 AM, Sotiris Sotiropoulos wrote:
>
> > Fraud *is* a type of theft William.  Trademark law was instituted to protect
> > against FRAUD.
>
> Wrong.

One word answers are not what I'd call `convincing'...

>
> >> Courts have already ruled on this Sotiris. While those decisions are
> >> not binding in every jurisdiction, they do set strong precedents.
>
> > Please produce a list of what you consider "strong precedents".
>
> How about a US Federal Court ruling which set a strong precedence,
> which applied the real legal definition of property under the law?
>
> Sex.com
> U.S. District Court Judge James Ware dismissed a theft claim --
> technically called a "conversion" claim -- against the convicted felon
> accused of hijacking sex.com, ruling that Web domains aren't property,
> and therefore can't be stolen.
>
> "There is simply no evidence establishing that a domain name,
> including sex.com," meets the definition of property "as required by
> the law of conversion," the judge wrote in his ruling, citing his own
> words from a May decision in a separate suit brought by sex.com's
> original owner, Gary Kremen, against domain registrar Network
> Solutions.
>
> http://www.wired.com/news/politics/0,1283,38398,00.html

The part you conveniently omitted from your citing of the article is a little less
than favourable to your case, William:

"The judge acknowledged that it's not totally clear whether property law should or
shouldn't apply to Web domains, but emphasized that the job of clarifying the law
rests with the legislature, not the courts. Legal experts seconded his opinion."
("his opinion" i.e. that the job of clarifying the law rests with the legislature, not
the courts!)

>
> >> The Harrods case does nothing to advance the concept of domain names
> >> being property.  Not by ANY reasonable stretch.
>
> > Forgive me for not ascribing to your specific standards of REASON, William.  All
> > I'm haring from you is the same thing over and over again.  Where are your
> > REASONINGS?  Please produce the evidence of which you speak.
>
> How about facts?

How about them?  You have yet to produce the "strong precedents", you mentioned.  You
cite one case, and even the judge in that case admits his decision may be open to
reversal ("The judge acknowledged that it's not totally clear whether property law
should or shouldn't apply to Web domains.."

> I haven't seen any from you at all.  I have a US federal judge saying
> specifically that domain names are not property.  You have a court
> ruling on an entirely unrelated subject that has nothing to do with
> domains and property rights.

I think the judge's admission speaks volumes, and it's a fact.  I'm sure it would have
shored up your argument if he didn't say what he did... but he did.

BTW, try telling AMAZON.COM their domain name isn't their property...

> >> Get a real attorney to tell me otherwise, one who has actually READ
> >> the case, and has a basis in IP and domain law.
>
> > Unlike the both of us, huh William?
>
> I rather like being on the side of Judges, as I said, find me an
> attorney who will read the FACTS and tell me otherwise.

I'd actually prefer to see a jury decide... there still is trial by jury in the United
States, no?  Your FACTS are skewed and misrepresented.  You cite one case without
actually proving anything (as the judge was less than certain), and you completely
ignore the FACT that domains are being declared de facto property in UDRP cases, as
well as court cases in which a claimant (with no registration) is awarded something
originally CREATED by a registrant.  How can you in all honesty ignore the BLATANT
FACT(S) of such a situation?  Then again, never mind answering that...

Sincerely,

Sotiris Sotiropoulos

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Date: Sun, 29 Jul 2001 09:35:00 -0400
From: Dan Steinberg <[email-masked]>
Subject: [ga] who is Dan Steinberg

My apologies to all for not posting earlier. I have been away on
vacation with my children this past week. Indeed it was Ken Stubb's
message  of congratulations that was my first inkling I had been
elected.

My thanks to those who voted for me and especially to those who recently

spoke out on my behalf when some of the newer participants in the
process expressed doubts as to who I am.

I still have a backlog of over 280 messages to get through  but I will
endeavor to add to this posting within 48 hours.

Dan Steinberg

SYNTHESIS:Law & Technology
35, du Ravin  phone: (613) 794-5356
Chelsea, Quebec  fax:   (819) 827-4398
J9B 1N1                 e-mail:[email-masked]

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Date: Sun, 29 Jul 2001 10:10:36 -0400
From: Sotiris Sotiropoulos <[email-masked]>
Subject: Re: [ga] Domain names as observed (was Tucows Response to   Cochet      tiTransfer Letter)

"William X. Walsh" wrote:

> Hello Sotiris,
>
> Sunday, July 29, 2001, 6:42:48 AM, Sotiris Sotiropoulos wrote:
>
> > "William X. Walsh" wrote:

> What he said was that under the law, as it exists today, domain names
> are not property.  His statemnet above, which is FAR from being
> important to the point, merely acknowledges that the congress may pass
> laws to change that in the future.

I beg to differ.  His comment is quite germane to the point.  he makes it clear:  IT IS
UNCLEAR EVEN TO THE JUDGE WHO RULED AGAINST DOMAIN NAMES AS PROPERTY, WHETHER THEY SHOULD BE
CONSIDERED PROPERTY OR NOT.  Like it or not, you cannot change this FACT.

> Legal exports seconded his opinion, an opinion refers to the entire
> written document, Sotiris.  I can tell you have had no legal training
> at all.  Even my limited amount lends itself to an understanding of
> what an opinion is when referenced in this fashion.

I know what a legal opinion is William.  Fact is, his legal "opinion" included the
acknowledgement "that it's not totally clear whether property law should or shouldn't apply
to Web domains, but emphasized that the job of clarifying the law rests with the
legislature, not the courts."  Presumably, the legal experts agreed with the ENTIRE opinion,
INCLUDING this admission.

> >> >> The Harrods case does nothing to advance the concept of domain names
> >> >> being property.  Not by ANY reasonable stretch.
> >>
> >> > Forgive me for not ascribing to your specific standards of REASON, William.  All
> >> > I'm haring from you is the same thing over and over again.  Where are your
> >> > REASONINGS?  Please produce the evidence of which you speak.
> >>
> >> How about facts?
>
> > How about them?  You have yet to produce the "strong precedents", you mentioned.  You
> > cite one case, and even the judge in that case admits his decision may be open to
> > reversal ("The judge acknowledged that it's not totally clear whether property law
> > should or shouldn't apply to Web domains.."
>
> No, what he said is true of ANY case, that the Congress may pass a law
> changing the status.  That does not make the precedent any less
> strong.

You originally said "strong precedents", plural... where are the rest of them?  In any case,
you and I both know that the next judge who rules in a similar case may establish the basis
for a different precedent.

Sincerely,

Sotiris Sotiropoulos

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Date: Sun, 29 Jul 2001 16:14:09 +0200
From: Jefsey Morfin <[email-masked]>
Subject: [ga] are the ccTLDs still in relation with the AmerICANN?

The three options presented by the ALSC for Directors are:

1. 3 from ASO, 3 from PSO, 3 from Provider SO, 9 elected by User SO, 1 CEO
2. 3 from ASO, 2 from PSO, 4 from ("new") DNSO (3 from registries and 1 
from registrars), 9 from Customer SO (4 from organizational constituencies 
and 5 from individual constituencies), 1 CEO
3. 19 'At-Large' Directors working in the best interests of the Internet 
and ICANN, representing only themselves.

Questions:

- - do you feel being a customer? for what product?
- - do you feel being a Provider? and a Provider for what?
- - where are the ccTLDs? gone with the wind?
- - where the IP rights, Business Constituency, NonComm... I suppose in the 
@large constituencies?

This would mean that the DNSO and the DNS system would fall under the 
control of VeriSign and of the TLDs... (M$ 200 in five years, you may 
remember). Very appealing: a lot of people are going to want to free the 
net, to unlock Windows and to go open routes.

Interestingly enough all of them should pay.... I was under the impression 
that @large represented the people who already paid? .... would e-democracy 
==  pay-democracy (then I would favor option 3: http://www.gip.org "a group 
of executives from a cross-section of international companies working to 
ensure private sector leadership in the development of the Internet") ?

Jefsey

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Date: Sun, 29 Jul 2001 07:56:48 -0700
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] Domain names as observed [correction]

> From: Dassa [mailto:[email-masked]]
> Sent: Sunday, July 29, 2001 4:05 AM

> I feel the debate on if they are or are not property is 
> unrewarding for the
> GA and a waste of time.  The courts are making those decisions.

Regardless of all else said on the subject, this is the most pertinent.

Whilst I agree with Leah, that DNS is a contracted service with a registry,
the bottom-line is that the courts will decide.
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Date: Sun, 29 Jul 2001 12:54:46 -0400
From: Joanna Lane <[email-masked]>
Subject: Re: [ga] Domain names as observed (was Tucows Response to   Cochet  tiTransfer Letter)

on 7/29/01 1:07 AM, L Gallegos at [email-masked] wrote:

> A property manager for an apartment complex does not
> necessarily own the complex, but has the rights to lease
> apartments within that property.  The tenant does not own the
> apartment, but does have whatever rights are conferred under the
> lease agreement.  He may or may not be able to sublet the
> apartment, sell, will or trade his rights in the lease contract, use it
> for something other than his domicile, etc.  It would all depend on
> the lease contract.  As long as the tenant continues to pay his
> "rent" and/or fees and does not violate the terms of the lease
> agreement, he has the right to enjoy the use of that apartment.
> 
> I don't see a registration as anything different, really, except that
> there is no physical property involved, but just a contract for a
> service.  
> 
> Leah

Leah,

The difference is that the apartment rented by the tenant was not created by
him in the first place. OTOH, the Registrant may well create the Domain Name
he is then being asked to rent. The fact that one cannot exploit a DN on the
internet without first entering into a contract for services does not mean
that entering into that contract is the defining moment of conception of
"example.com". In all cases origination pre-exists registration, if only by
a millisecond.

While example.com may not have been registered for use on the internet,
nevertheless, it could have been exploited in numerous other media without
any reference to the relevant registry. Last time I looked, nobody but the
general public owned all the rights to domain names that have yet to be
invented, (excluding those that relate to trademarks etc.), and therefore
any one of us should be able to use what we invent in all existing (and
hereinafter invented) media, not just the ICANN root.

The process by which a registrant thinks up a new DN prior to registration
is surely a creative process, an original artistic and literary work. A real
life example of that would be "bazoomer.com", which features as the product
placement storyline in David Mammet's fictional film "State and Main" (BTW,
an excellent movie). Another example is VeriSign's own "the-bug-reaper.com"
commercial.  Neither of these domain names is active, and probably never
will be, their purpose is simply to exist in an artistic and literary
context as part of fictional work that is being exploited extensively in the
public domain using other media - theatrical release, broadcast TV, DVD,
Video etc. 

These examples, and others, may enter the public conscious without ever
being accessible in the DNS roots or appearing on a single end user screen.
Therefore, it's seems obvious to me that strictly speaking, it is possible
(albeit not desireable) for a dotcom Domain name to exist and be exploited
without any formal registrar service contract with VeriSign.

Regarding property rights, in the bazoomer.com example, we can assume that
since bazoomer.com is a fictional entity, neither distributor nor filmaker
has any intention of either selling bazoomers or applying for a bazoomer.com
trademark, hence the DN simply allows exclusive exploitation rights in all
media for the name itself, as would be acquired for any other artistic work
- - a line of poetry, a bar of music or an artists sketch. Whereas the
stateandmain.com domain is actively promoting a real life physical product
of a film, and is registered to the films distributors as one would expect,
the domain name that relates to the non-existant company described in the
film, and is inactive, bazoomer.com, belongs to the film's creative heart,
writer and director, David Mammet. I think this reflects an important
distinction by Hollywood lawyers.

In the case of Verisign's "the-bug-reaper.com", again it is a fictional
representation, the key creative element of their current ad campaign, which
storyline features two actors thinking up domain names. Obviously VeriSign
reserved this domain without any intention of actually selling bug-killing
products and services, but would indeed have needed copyright in the use of
idea in an artistic and literary sense, in order to broadcast it on
television as a commercial.

IANAL, but it seems to me that at least those Domain Names that are
specifically created as part of a work of literary fiction, do come with
copyrights that may be enforceable through use of other media as well as or
instead of a service contract or trademark.

I am not connected with any of the persons or entities mentioned in this
post and all comments are based on my personal opinion.

Regards,
Joanna

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Date: Sun, 29 Jul 2001 12:35:54 -0700
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] Domain names as observed [correction]

This is the turely nasty thing about the UDRP. The registry doesn't care. It
is a registry, not a court. The ICANN, as a TECHNICAL standard setting body,
does not make law. 

Maybe I hadn't phrased it properly and I allowed Kent much opportunity to
dilute the point with distraction, but the point remains that these are NOT
technical issues. They are matters of law and public policy and we seriously
risk over-stepping our bounds here.

> -----Original Message-----
> From: Eric Dierker [mailto:[email-masked]]
> Sent: Sunday, July 29, 2001 8:50 AM
> To: Roeland Meyer
> Cc: [email-masked]'; ga
> Subject: Re: [ga] Domain names as observed [correction]
> 
> 
> Dear Roeland and Dassa,
> 
> Courts do not go out and create fact.  Courts interpret facts 
> and apply
> precedential and legislative rules to facts that are presented.
> For instance: If a matter is too complicated and requires 
> expertise outside
> that normally held by a lay person the court will require the 
> testimony of
> qualified experts, medical malpractice, arson, land 
> appraisals and such.
> Now in the case bandied about here recently we could call two 
> experts from this
> list and the judge would weigh the significance to be 
> assigned to either
> experts opinion and pick one.  He would not be free to go make his own
> opinion.(not to say that he would not)  You can complicate 
> this truth quite a
> bit by putting the matter before a jury.
> But make no mistake, absent a law by the appropriate body 
> otherwise, what a
> domain name is, is a question of fact to be decided by 
> *experts* in the field.
> This is my position but of course someone could come and 
> argue that what we
> characterize a right as -- is a matter of law and not fact. 
> But that is a lame
> argument and following that type of argument brings us 
> technically improper
> decisions like Roe v. Wade, which is a classic case of 
> judicial legislation.
> 
> In other words this is the place to decide what a domain name 
> is and is not
> *Domain Name Support Organization*.
> 
> Sincerely,
> Eric
> 
> Roeland Meyer wrote:
> 
> > > From: Dassa [mailto:[email-masked]]
> > > Sent: Sunday, July 29, 2001 4:05 AM
> >
> > > I feel the debate on if they are or are not property is
> > > unrewarding for the
> > > GA and a waste of time.  The courts are making those decisions.
> >
> > Regardless of all else said on the subject, this is the 
> most pertinent.
> >
> > Whilst I agree with Leah, that DNS is a contracted service 
> with a registry,
> > the bottom-line is that the courts will decide.
> > --
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> 
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Date: Sun, 29 Jul 2001 12:45:17 -0700
From: Kent Crispin <[email-masked]>
Subject: Re: [ga] Domain names as observed (was Tucows Response to Cochet  tiTransfer Letter)

On Sun, Jul 29, 2001 at 12:54:46PM -0400, Joanna Lane wrote:
> on 7/29/01 1:07 AM, L Gallegos at [email-masked] wrote:
> 
> > A property manager for an apartment complex does not
> > necessarily own the complex, but has the rights to lease
> > apartments within that property.  The tenant does not own the
> > apartment, but does have whatever rights are conferred under the
> > lease agreement.  He may or may not be able to sublet the
> > apartment, sell, will or trade his rights in the lease contract, use it
> > for something other than his domicile, etc.  It would all depend on
> > the lease contract.  As long as the tenant continues to pay his
> > "rent" and/or fees and does not violate the terms of the lease
> > agreement, he has the right to enjoy the use of that apartment.
> > 
> > I don't see a registration as anything different, really, except that
> > there is no physical property involved, but just a contract for a
> > service.  
> > 
> > Leah
> 
> Leah,
> 
> The difference is that the apartment rented by the tenant was not created by
> him in the first place.

Neither is the domain name.  "example.com" is useless, unless it is 
registered in a .com registry.

> OTOH, the Registrant may well create the Domain Name
> he is then being asked to rent. The fact that one cannot exploit a DN on the
> internet without first entering into a contract for services does not mean
> that entering into that contract is the defining moment of conception of
> "example.com". In all cases origination pre-exists registration, if only by
> a millisecond.

You are confused.  I just made up the string
"asdrieeavaseseravaserasevasereeravea34radaeada.com".  But it isn't a
domain name -- it's just a string of characters.  It isn't a domain name
*until it is registered*. 

> The process by which a registrant thinks up a new DN prior to registration
> is surely a creative process,

Correction.  Thinking up something that *might become a domain name* is
a creative process.  But it isn't really a domain name until it is
registered and functioning. 

> an original artistic and literary work. A real
> life example of that would be "bazoomer.com", which features as the product
> placement storyline in David Mammet's fictional film "State and Main" (BTW,
> an excellent movie). Another example is VeriSign's own "the-bug-reaper.com"
> commercial.  Neither of these domain names is active, and probably never
> will be,

Then they aren't really domain names.

 their purpose is simply to exist in an artistic and literary
> context as part of fictional work that is being exploited extensively in the
> public domain using other media - theatrical release, broadcast TV, DVD,
> Video etc. 
> 
> These examples, and others, may enter the public conscious without ever
> being accessible in the DNS roots or appearing on a single end user screen.
> Therefore, it's seems obvious to me that strictly speaking, it is possible
> (albeit not desireable) for a dotcom Domain name to exist and be exploited
> without any formal registrar service contract with VeriSign.

You are exploiting a string.  But you only have rights to the *domain
name* if you have some intellectual property rights that you develop for
the string -- eg, a TM.

- -- 
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[email-masked]                           lonesome." -- Mark Twain
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Date: Mon, 30 Jul 2001 12:26:39 +1200
From: Joop Teernstra <[email-masked]>
Subject: Re: [ga] Domain names as observed

At 09:42 29/07/2001 -0400, Sotiris Sotiropoulos wrote:

>"The judge acknowledged that it's not totally clear whether property law 
>should or
>shouldn't apply to Web domains, but emphasized that the job of clarifying 
>the law
>rests with the legislature, not the courts. Legal experts seconded his 
>opinion."
>("his opinion" i.e. that the job of clarifying the law rests with the 
>legislature, not
>the courts!)

This cannot be emphasised enough.
While there are "bush-lawyers" (Australian expression for people who are 
not lawyers, but who  dispense advise of a legal nature) among us who want 
us to shut up about Domain Name owners' rights, the function of the DNSO GA 
is exactly to help shaping the law, where there is currently a barely 
filled vacuum.

If ICANN functions the way it should, WE are input to the legislatures 
around the world. Or we should try to be.

Why should the applicant for .kids have more input to active US Congressmen 
than the General Assembly of the Domain Name Supporting Organization?

The Courts can only look at existing Domain Name legislation. Their 
jurisprudence so far has only demonstrated how flimsy that legislation  is.

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Date: Sun, 29 Jul 2001 21:19:58 -0700
From: Roeland Meyer <[email-masked]>
Subject: RE: [ga] Domain names as observed

> From: Joop Teernstra [mailto:[email-masked]]
> Sent: Sunday, July 29, 2001 5:27 PM

> the function of the DNSO GA 
> is exactly to help shaping the law, where there is currently a barely 
> filled vacuum.

I strongly disagree. Trademark law has been extant for over 300 years. It is
well developed and fairly substantial. It is also media independent and
amazingly robust. Furthermore, most of the modern world is signatory to
treaties supporting it as a body of international law. It has global scope,
for various definitions of "global".

The UDRP pretends to usurp trademark and intellectual property treaties.
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Date: Mon, 30 Jul 2001 01:02:43 -0400
From: Sotiris Sotiropoulos <[email-masked]>
Subject: Re: [ga] Domain names as observed [correction]

Jeff Williams wrote:

> IP and trademark are not external property rights at all.
> See: http://laws.lp.findlaw.com/9th/9856918.html as yet another example...

Jeff, thanks for this.. it's relevance and interest were well timed.
Interestingly, Judge O'Scannlain states the following in his opinion: "Other than
requiring an applicant to make certain representations, Network Solutions
does not make an independent determination about a registrant's right to use a
particular domain name."

This is not true.  Try registering a domain name including the words Olympic,
Olympian, or Olympiad .whatever and see what Network Solutions or Register.com
will tell you...

Also, the Judge continues a little later on:

"The domain name is more than a mere address: like trademarks, second-level
domain names communicate information as to source."

That is an explicit statement of property qualification.  It could not be more
clear.

Never mind that philosophically the very activity of naming (i.e. te creative
act) is an act of possession in and of itself.

>
> Or even and older reference:
> http://www.internetnews.com/bus-news/article/0,,3_85661,00.html
> which clearly states that Domain Names are indeed Private Property.

Once again Jeff, good heads-up on this research.  This quote pretty much sums it
up: "Typically we thought registrants had a two-year license to a domain name,
but the court is suggesting they have a property interest. As a result, if the
registry takes a name away from you without a legal basis, than you can sue them
for civil damages. And that's a powerful thing," Fausett said."

Sincerely,

Sotiris Sotiropoulos

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Date: Mon, 30 Jul 2001 09:45:34 +0200
From: Jefsey Morfin <[email-masked]>
Subject: Re: [ga] Domain names as observed [correction]

Dear Sotiris,
The key isue here is in the initial sentence:
"Brookfield Communications, Inc. ("Brookfield") appeals the district 
court's denial of its motion for a preliminary injunction prohibiting West 
Coast Entertainment Corporation ("West Coast") from using in commerce terms 
confusingly similar to Brookfield's trademark, "

The key word is "in commerce".

The vision of the Judge is not Internet but commerce oriented. Let assume 
that you as a private person would have used the same DN to access your 
family site, do you think the reasoning would have been the same? The role 
of TM is not to give property over the name, but to avoid confusion into a 
specific product class. Family life is not a class protected by TMs.

The entire DN issue is a confusion based upon two mistakes:
- - to believe that DNs are something different from the name of something, 
because this would expose the "ICP-3" error and reduce the Internet to the 
common law.
- - to treat the Internet as only a commercial issue. (Helped by the fact 
that "com" stands more for "communication" than for "commerce" in people's 
mind and that "org" is not a clear string.

Marc, you probably know that better than anyother one what is the UDRP 
trend on .net and .org when compared with .com?

Jefsey

On 07:02 30/07/01, Sotiris Sotiropoulos said:
>Jeff Williams wrote:
>
> > IP and trademark are not external property rights at all.
> > See: http://laws.lp.findlaw.com/9th/9856918.html as yet another example...
>
>Jeff, thanks for this.. it's relevance and interest were well timed.
>Interestingly, Judge O'Scannlain states the following in his opinion: 
>"Other than
>requiring an applicant to make certain representations, Network Solutions
>does not make an independent determination about a registrant's right to use a
>particular domain name."
>
>This is not true.  Try registering a domain name including the words Olympic,
>Olympian, or Olympiad .whatever and see what Network Solutions or Register.com
>will tell you...
>
>Also, the Judge continues a little later on:
>
>"The domain name is more than a mere address: like trademarks, second-level
>domain names communicate information as to source."
>
>That is an explicit statement of property qualification.  It could not be more
>clear.
>
>Never mind that philosophically the very activity of naming (i.e. te creative
>act) is an act of possession in and of itself.
>
> >
> > Or even and older reference:
> > http://www.internetnews.com/bus-news/article/0,,3_85661,00.html
> > which clearly states that Domain Names are indeed Private Property.
>
>Once again Jeff, good heads-up on this research.  This quote pretty much 
>sums it
>up: "Typically we thought registrants had a two-year license to a domain name,
>but the court is suggesting they have a property interest. As a result, if the
>registry takes a name away from you without a legal basis, than you can 
>sue them
>for civil damages. And that's a powerful thing," Fausett said."
>
>Sincerely,
>
>Sotiris Sotiropoulos
>
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>Send mail to [email-masked] to unsubscribe
>("unsubscribe ga" in the body of the message).
>Archives at http://www.dnso.org/archives.html

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------------------------------

Date: Mon, 30 Jul 2001 19:26:42 +1000
From: "Dassa" <[email-masked]>
Subject: RE: [ga] Domain names as observed

|> -----Original Message-----
|> From: [email-masked] [mailto:[email-masked]]On Behalf Of
|> Joop Teernstra
|> Sent: Monday, July 30, 2001 10:27 AM
|> To: Sotiris Sotiropoulos
|> Cc: ga; [email-masked]
|> Subject: Re: [ga] Domain names as observed
|
|>
|> This cannot be emphasised enough.
|> While there are "bush-lawyers" (Australian expression for
|> people who are not lawyers, but who  dispense advise of a legal nature)
among
|> us who want us to shut up about Domain Name owners' rights, the function
of
|> the DNSO GA is exactly to help shaping the law, where there is currently
a barely
|> filled vacuum.

Sorry Joop, that is not a function of the GA at all.  Much as some people
may like it to be.  The GA has a clearly defined function and charter.
Trying to subvert the GA into a political body by making statements similar
to the above is clearly abusing your membership in the GA.

The GA is far better off concentrating on the charter it has been given and
becoming effective in doing so.

If yourself and others wish to engage in political/legalistic policy making
of that nature I would suggest using another forum.  I would personally be
willing to participate in the correct forum as I see merit in attempting to
do so.  In the GA is not the place.

Darryl (Dassa) Lynch.

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Date: Mon, 30 Jul 2001 19:48:48 +1200
From: Joop Teernstra <[email-masked]>
Subject: RE: [ga] Domain names as observed

At 21:19 29/07/2001 -0700, Roeland Meyer wrote:
> > From: Joop Teernstra [mailto:[email-masked]]
> > Sent: Sunday, July 29, 2001 5:27 PM
>
> > the function of the DNSO GA
> > is exactly to help shaping the law, where there is currently a barely
> > filled vacuum.
>
>I strongly disagree. Trademark law has been extant for over 300 years. It is
>well developed and fairly substantial.

Roeland,

Give or take a few years :-) , I don't think we disagree on that. I wasn't 
talking about TM law. My apologies if I caused a misunderstanding.
I meant to be  talking about new legislation that defines the rights and 
obligations of Domain Name Holders/Owners in the context of everything they 
undertake in Cyberspace.
Vis-a-vis TM holders/owners, vis-a-vis the registrars and registries, 
creditors , ISP's, IPP's, and everybody they deal with across borders.

National Laws can only be enforced locally. Natural Justice does 
not  accept long-arm statutes that would force a DN owner to defend his 
rights in a foreign court.

>The UDRP pretends to usurp trademark and intellectual property treaties.

Yes, even when you would ascribe it the best of intentions, that seems to 
be the outcome.
Be prepared that the UDRP may end up as a forerunner of a section in a 
Domain Name Treaty.

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End of GA-DIGEST V1 #640
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