[At-Large] DomainIncite : Is this why WhatsApp hates some TLDs but not others?

[Karl Auerbach]

Last night it struck me that some of these "DNS abuse" contractual 
"remedies" that have been proposed my prove to have a couple of Achilles 
Heels...

First there are the laws about anti-competitive agreements.  I am far 
from an expert in these, but my neurons begin to buzz when I read about 
ICANN agreements that effectively penalize sales of domain names simply 
on the basis of volume or price without any evidence that these specific 
sales are part of an agreement associated with unlawful acts (such as 
phishing.)

What concerns me is that these proposed contractual terms are not 
triggered by actual unlawful acts but by the fear, without evidence, 
that mass sales of domain names must somehow lead to unlawful acts.

There are ways to deal with this kind of thing that carry less risk of 
triggering complaints of anti-competitive actions by ICANN.  One would 
be a "know your customer" requirement, such as is imposed on financial 
institutions, for large transactions. Another is simply reporting large 
transactions so that an inquiry could be made whether something 
nefarious is actually going on.

Second there is the fact that ICANN's agreements are formed under the 
laws of California (and the US).  And under California law contractual 
remedies for breach (which, despite common belief, can be partial) must 
be tied to the actual amount of harm caused. In other words, punitive 
remedies, are generally not allowed or are restricted.

An ICANN contractual provision that punishes a registr* for selling 
large blocks of names, perhaps at a discount, could be considered 
punitive and unrelated to actual or reasonable (agreed-upon, 
"liquidated") harms.

These considerations reinforce my concern that ICANN rules that restrict 
sales or punish registr*s or users for merely imagined downstream 
unlawful uses of names may be rules that are themselves unlawful.

So, again, I express my sense that if ICANN desires to impose rules to 
restrict undesirable uses of domain names then those rules must be 
triggered by evidence of actual, concrete unlawful activities.

And, further, I sense that some of the downstream activities that some 
among us wish to restrict are not actually unlawful.  I am not aware of 
(but I could be wrong) that there is anything unlawful about buying up 
large numbers of domain names as part of a system of influencing web 
search engines' ranking algorithms.

I and my companies hold trademarks - I understand the urge to cry wolf 
whenever I see someone using something that gets close to my marks.  So 
I understand the desire for Intellectual Property protection attorneys 
(remember, I am part of that tribe) to seek to protected beyond the 
strict limits of our marks.  All of this is to say that it would be wise 
for ICANN to avoid putting into place contractual rules that get in the 
middle of often murky and often hard fought copyright or trademark disputes.

(I would also add that the purpose of trademark law is to protect the 
consumer - in other words, to protect you and me - and not to protect 
the vendor of goods and services.  Consequently it seems to me that 
within ICANN it is odd that the making of policy in these matters is 
largely in the hands of those vendors, with nary a seat at that 
policy-making table given to consumers - the community of Internet users.)

         --karl--