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

Mon Jul 1 17:18:08 UTC 2019

Dear Kale,

unfortunately all we have for this interaction is a mailing list. You'll
lose a lot of people moving it to a discord server.
Kindest regards,

Olivier

On 01/07/2019 16:04, Kale Williams wrote:
> Good Day all, 
>
> Could we perhaps move this discussion to a discord server ? It would
> be much easier to follow using something like that vs via email. 
>
> Just a suggestion,
> Kale Williams 
>
>
>
> Sent from my Samsung Galaxy smartphone.
>
>
> -------- Original message --------
> From: Karl Auerbach <karl at cavebear.com>
> Date: 01/07/2019 3:57 pm (GMT+00:00)
> To: JOHN MORE <morej1 at mac.com>
> Cc: LAC-Discuss-en <lac-discuss-en at icann.org>, At-Large Worldwide
> <at-large at atlarge-lists.icann.org>
> Subject: Re: [lac-discuss-en] [At-Large] - Price caps - was: The Case
> for Regulatory Capture at ICANN | Review Signal Blog
>
> The foundation of the US requirement of "use in commerce" is to satisfy
> the Article I commerce clause power of Congress to create trademark
> law.  Other countries don't need to overcome that legislative-authority
> hurdle.  Perhaps one might imply "use in commerce" as a necessary thing
> for when the US Dept of Commerce got involved in "NewCo" (eventually
> ICANN) in the first place, but nobody really inquired about authority. 
> (Or rather, we inquired, but we got hand-waving responses best
> characterized by the voids rather than the substance.)
>
> I've registered a whole pile of marks on the basis of "Intent to use". 
> Sure, I may eventually have to show that I eventually used that mark,
> but in the meantime I've got a trade/service mark without actual use in
> commerce.  (In my own work we actually do intend to use - our trademark
> attorney would come after us if we didn't - but I can't say that of
> everyone.)  There's an interesting additional twist which is that after
> the five year first period of US trademarks (and the filing of the right
> papers and fees) the US mark becomes incontestable.  Even domain names
> don't attain the status of "incontestable".
>
> In the domain name space "use" is a very vague term.  Does it mean that
> a name actually has some RR records attached.  If that's "use" then most
> registrars would simply attach (as many do) a couple of MX records to
> every registered name (in addition to the obligatory SOA and NS
> records.)  Certainly "use" can not mean "website" because there are many
> uses of a name distinct from supporting the world-wide-web, which is
> merely one application out of many that are on the internet.  And in
> this era of security concerns is one obligated to have a DNS server for
> the zone that is willing to accept DNS query packets from any and all
> sources?
>
> I've got a registered name that I prefer that only certain people even
> know about - behind it is a zone filled with names with resource records
> designed to stress DNS software - in fact I have yet to see a DNS
> resolver that can handle all of the cases.  This zone is present to
> support software testing.  Anyone expecting to interact with those names
> will be sorely disappointed (especially as there is a lot of buggy DNS
> client software out there.)  Does that constitute "use"?
>
> In many other areas - such as the acquisition of land or a painting,
> even a painting beyond copyright, there is no obligation of use of the
> land or to display the art.  In fact one of the touchstones of
> "ownership" is the power to say "no" (or, as art museums do, impose
> terms of use on visits to the  museum that forbid the making of copies,
> even copies of paintings that have long since fallen into the public
> domain.)
>
> Sure, I'd like to say 'I'm a refugee' or 'I'm a entrepreneur' and have
> that open the gates to the US National Gallery so that I can take home
> my favorite Berthe Morisot painting   That may sound absurd, but it is
> what I hear when I hear advocacy of some sort of hierarchy of privilege
> with regard to domain names.
>
>      --karl--
>
>
> On 6/30/19 4:36 PM, JOHN MORE wrote:
> > Karl
> >
> > Your attack on the trademark analogy is off base. For trademarks to
> be registered you have to show use. That is not true of domain name
> speculators. Even for common law trademark, you have to show a first use.
> >
> > John More
> > ISOC-DC
> >
> >> On Jun 28, 2019, at 8:03 PM, Karl Auerbach <karl at cavebear.com> wrote:
> >>
> >>
> >>> On 6/28/19 2:36 PM, Evan Leibovitch wrote:
> >>>
> >>> Here's another, anecdotal datapoint: I have been involved in the
> Internet for nearly as long. But it's been helping family, friends,
> small businesses, colleges, religious institutions, and refugees in
> camps. I've worked with entrepreneurs both new and established,
> struggling to make a presence on the Internet and finding that their
> first 20 choices were only available at an aftermarket premium. The
> result is that they either had to:
> >>>   * change their brand name to suit the available names (this has
> >>>     happened more than once)
> >>>   * agonize over whether to settle for a domain name using hyphens
> >>>   * pay a lesser premium in a new TLD they don't know is fully
> reachable
> >>>   * resign themselves to having a non-memorable (ie, shitty)
> domain and
> >>>     using other strategies to lead people to them.
> >> I agree that it is sad that we don't live in a world of pink
> ponies, unicorns, perfect equity, and no competition for resources.
> >>
> >> Your people want "brand names" - which I read as a synonym for
> "trademark" - and find that someone else has already registered it?
> >>
> >> That's pretty normal life in the land of trade names.  Somebody got
> there first.  Somebody else go there too late.  That is not
> speculation, that is not abuse.
> >>
> >> Athol Fugard wrote that "the saddest words ... are 'too late'."
> >>
> >> Or are you arguing that there is some sort of elevated goodness
> attribute that should allow "family, friends, small businesses,
> colleges, religious institutions, and refugees" to preempt prior uses?
> And who shall be the judge that weighs applicants to measure who is
> the more worthy?
> >>
> >> (Given that my wife and I make large contributions of our time,
> labor, and money to non-profit and charitable organizations, we might
> find that kind of preemptive power useful.  But I doubt that such a
> thing would always be perceived as fair or just by the prior users.)
> >>
> >> (And I do wonder about the inclusion of "small business" and
> "entrepreneurs" in that list - I'd love to have my small businesses to
> have a power of preemption.  And in the several start-ups that I've
> done I would have welcomed the ability to take a domain name away from
> another prior user.)
> >>
> >> Are you focusing on the notion of "use"?  If so, what is "use" of a
> domain name?  Must it resolve - for any query from any source - to an
> IP address, or a TXT record or something?  If that requirement were
> put into place you can bet that every registrar will quickly deploy a
> "sufficient to pass muster" resolver service for its customers to use.
> >>
> >> (Since you mentioned entrepreneurs - A common practice in start ups
> is to register a portfolio of domain names as candidates for products
> or corporate names, to hold them in private for several years, and
> then to sell off the ones that were not selected to be put into play. 
> Does that constitute a "use" or an "abuse"?)
> >>
> >> Regarding hyphenated or even non-semantic names - Anyone these days
> who depends on humans making semantic sense out of a domain name is
> living in days of fading glory.  Search engines, especially when
> embedded in browser address bars, have long ago started to diminish
> the use of domain names as carriers of semantic content.  And the rise
> of application handles such as facebook or twitter names has
> diminished that further.
> >>
> >>     --karl--
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