[At-Large] - Price caps - was: The Case for Regulatory Capture at ICANN | Review Signal Blog

Evan Leibovitch evan at telly.org
Fri Jun 28 12:16:35 UTC 2019

Oh gawd yes. Agree with everything. Thanks, Barry.

While both Barry and Karl have their indictments of the MSM, this is the
rationale that rings true to me.

>From day one of my involvement in ICANN I have wished that it adopted a
"use it or lose it" regime for domains as exists for trademarks. That would
eliminate the speculation problem overnight.

- Evan

On Thu, 27 Jun 2019 at 15:40, <bzs at theworld.com> wrote:

> If I may kick over the chess board...
> What underlies just about all these problems is the very notion that
> one can register a domain name and not put it to use yet still retain
> rights.
> You can't go to the USPTO or WIPO and just register clever strings and
> expect protection for them, e.g., sell them on the market, sue
> infringers, etc.
> Fundamental to trademark protection is that they are used in
> commerce.
> You have to provide evidence of use in commerce to tm orgs when you
> register, and on each renewal.
> And your rights can be terminated if someone can show the mark
> represents no good or service. That's a much higher bar than "bad
> faith".
> Even ICANN's Trademark Clearinghouse (TMCH) requires this evidence to
> tie your trademark to certain domain rights -- if nothing else
> consider that an existence proof before countering that it would be
> too difficult, we do it now.
> 250+ years of experience told the tm orgs one has to do that or else
> we'd have what the domain system has now, a non-stop landrush for
> strings and a demand that other entities (e.g., ICANN via UDRP/URS,
> courts, etc) should expend whatever resources necessary to protect
> these string rights.
> Why?
> Because, and this touches on Evan's points, at the root (ahem) of
> trademark rights are consumer protections, not rights in ownership.
> The latter are a result.
> The purpose of a tm is to protect a consumer so they know when they
> buy a box of Acme Soap it is highly likely to be a product of the Acme
> Soap company and anything else is civil and/or criminal fraud.
> We came close to this concept with secure websites and certificates
> etc. but it's somewhat tangential, more like the holograms Microsoft
> et al puts on their optical media and similar (e.g., license
> activation.)
> Instead ICANN has created effectively a type of fiat currency --
> perhaps an economics historian can help me focus that term -- but an
> abstract object with speculative value even absent any actual usage.
> It's worse than that since currency generally has the same value w/in
> a type (e.g., each US dollar is worth about the same) whereas every
> single domain string is subject to individual valuation.
> And every single domain name represents a type of monopoly on that
> string whereas, e.g., any US dollar (or Euro, whatever) is as good as
> any other.
> Namespaces are not new or unique.
> Telephone numbers, postal addresses, national identification numbers,
> personal names (go ahead try to launch a singing career calling
> yourself Beyonce or Sting), etc.
> IANA manages hundreds of them such as MAC addresses for your wi-fi and
> ethernet devices.
> The problem here goes very deep and trying to patch it up with price
> controls etc really is like rearranging deck chairs on the Titanic,
> putting lipstick on the pig, closing the barn door after the horse is
> long gone, whatever.
> And the idea that trademark orgs like WIPO or USPTO could hold back
> "premium" trademarks and charge much higher prices as we allow
> registries to do is laughable self-dealing idiocy.
> This entire structure smacks so much of the foxes guarding the
> henhouse that to be honest it is a chilling indictment of the very
> concept of "multi-stakeholderism".
> The emperors really have no clothes.
> Which is to say no legal and moral structure other than whatever
> serves the participants' own selfish interests which amounts to who
> shows up at a table for a vote.
> Perhaps someone with better economics history credentials can explain
> what a bad corner this industry has painted itself into and why a few
> reforms here and there probably won't fix it.
> Right now, to me, it all resembles the sort of structure tinpot
> dictators and their corrupt cronies devise.
> I realize people desperately like to think better of themselves.
> All ICANN say is: Sorry! If the shoe fits...
> --
>         -Barry Shein
> Software Tool & Die    | bzs at TheWorld.com             |
> http://www.TheWorld.com
> Purveyors to the Trade | Voice: +1 617-STD-WRLD       | 800-THE-WRLD
> The World: Since 1989  | A Public Information Utility | *oo*
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Evan Leibovitch, Toronto Canada
@evanleibovitch or @el56
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