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nettime maillist on Wed, 10 Mar 1999 18:47:41 +0100 (CET)


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Date: Wed, 10 Mar 1999 13:11:26 +0100
To: nettime-l {AT} desk.nl
From: Srdjan Dvornik <sdvornik {AT} zamir.net>
Subject: M. Froomkin: Damning critique of WIPO Internet domain name proposal


[After issuing a full length critical report on the WIPO's proposal to 
regulate the Internet domain space (see Ted Byfield's nettime  post dated 
21.1.99) Michael Froomkin provides a summary of the main points of his
critique. Best. Felix] 


	Just in time for the last public hearing this coming Wednesday
(March 10, 1999) in Washington, law professor Michael Froomkin of the
University of Miami has issued on his web page a damning critique of the
current domain name proposal of the World Intellectual Property
Organization.  I'll let his paper speak for itself, but this issue is so
important to the future of an Internet-enhanced society that I urge wide
circulation and reading of the Froomkin critique before a grand disaster
is set up by an organization with tenuous legitimacy and experience in
Internet-related matters, but with plenty of baggage from the existing
powers-that-be.  I've reproduced just the opening part below, but URLs to
more detailed arguments are given there. 

>From Froomkin's Web page (http://www.law.miami.edu/~amf/quickguide.htm):

 Major Flaws in the WIPO Domain Name
                             Proposal --
                          A Quick Guide

                       A. Michael Froomkin, Professor of Law

Executive Summary

The World Intellectual Property Organization's plan to restructure the way
Internet domain names in .com, .net, and .org are assigned and adjudicated
is deeply flawed. The plan, contained in WIPO's "Interim Report" is
designed to solve problems caused when Internet domain names collide with
trademarked words. WIPO was asked to make suggestions for better dispute
resolution, and it claims to have produced a plan that creates no new
rights for intellectual property holders. In fact, however, the plan would
impose extensive Alternate Dispute Resolution on all domain name
registrants accused of infringing of any type of intellectual property
with their registration. 

The WIPO plan's flaws include: 

Bias. The plan is biased in favor of trademark holders; Enabling
censorship. The WIPO plan fails to protect fundamental free-speech
interests including parody, and criticism of corporations; Zero Privacy.
The WIPO plan provides zero privacy protections for the name, address and
phone number of individual registrants; Intimidation. The WIPO plan
creates an expensive loser-pays arbitration process with uncertain rules
that will intimidate persons who have registered into surrendering valid
registrations; Tilts the playing field. The WIPO plan would always allow
challengers to domain names registrations to appeal to a court, but would
often deny this privilege to the original registrant; Smorgasbord approach
to law. Instead of directing arbitrators to apply applicable law, WIPO
proposes using additional, different, rules it selected-rules that will
often disadvantage registrants. 

A brief memo explaining these points follows. A more detailed, 50-page
version, is also available in various file formats from
http://www.law.miami.edu/~amf .  This paper also proposes an alternate,
fairer, reform plan. 

The key elements of the simpler reform plan are:
* Reduce speculative registration: Require advance payment before
registration 
* Penalize false contact details: De-register domains with fake
contact information 
* Consider creating special rules to penalize large-scale domain 
speculation 
* Trust courts to continue to clarify relevant law
* Understand that rapid changes in technology may make domain
names less important 
* Create differentiated commercial and non-commercial top-level domains



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