Below is an interesting account from yesterday's IRT Report  
performance in NYC from the IP Constituency.

Thanks to Kathy for going and keeping the pressure up on these  
lobbyists!    I watched much of the show over the web (although the  
question I sent in via remote participation didn't find its way to  
the floor).

It was amazing to watch the big brand owners talk about how they are  
doing all of this to protect consumers and the children.

And they also seem to sincerely not understand that they don't own  
language.   They seem to believe that having a trademark gives them  
the right to control language (it doesn't!).

It is beyond strange that the ICANN policy forum creates policy based  
on the desires of large IPR holder and not based on the law about  
those rights -- more evidence that ICANN lacks institutional  
confidence to govern.

Was any one who was at the IPC's performance yesterday in NYC have  
any other observations to share?

Best,
Robin

http://docs.vrx.net/dns/timeline/20/09/nyc_irt/
July 13 ICANN IRT in NYC

Today I attended, via a very capable remote using "Adobe Acrobat  
Connect Pro", an ICANN meeting in New York City. I haven't even  
looked at anything ICANN for nearly a decade so I thought this would  
be interesting and fun.
It was both. Having done this stuff since 1996 in one form or another  
I was curious to see where these guys are at now that the answer to  
the question "when will we have new TLDs" has changed from "2 years  
from whenever you ask" to "the next spring after you ask". We're  
getting closer.

But, the more things change the more things stay the same. The first  
panelist on the first of three panels was WIPO, and that order, for  
me set the tone and timbre for the entire event - because in 14 years  
the discussion about the creation of new top level domains centers  
around the trademark lobby stroking their chin and saying "hmmm, we'd  
like to study this (for years)", their stall tactic is at least  
consistent, and that's all it is. If there's some problem they've got  
now they haven't had time to look at in the last 14 years then it  
probably isn't very important!

After the panelists spoke the floor was opened up in the typical  
"here's the mike, you've got a couple of minutes" style and people  
lobbied on many sides of the equation, just as they've done for over  
a decade. There were of course a number of lawyers telling tales of  
woe on behalf of big brand owners. The Time Warner guy made a point  
of saying how all these extra costs were tough in these economic  
times. Never mind the introduction of new TLDs will probably create  
15,000 new jobs and might relieve some of the anti trust pressures  
around the NSI-ICANN nexus.

A disturbance broke out and security tossed somebody out, it's good  
to see there are some traditions never change.
Somebody speaking for Hearst media mentioned money they'd had to  
shell out for legal fees and mentioned some people they'd taken  
action against because of domain names in an attempt to garner  
sympathy. But, see, the thing is, he being misleading at best and at  
worst, he was lying.

John Berryhill was there to call him out on it and was speaking to  
the issue counter to the one the trademark lobby likes to bring up,  
which is abusive domain registration, no, John spoke to the opposite,  
abuses by trademark owners against legitimate domain name use, where  
they try to game the system to get some domain off some poor  
unsuspecting sap just because they happen to have a trademark. Recall  
that trademarks are specific to a class of goods and services in a  
proscribed geographic area. Delta faucets can't take away Delta  
airlines domain, because their taps don't infringe on Delta's  
airplanes - "Nobody turns on a tap to get an airline schedule" and  
two trademarks with the same name can coexist.

So John listed a few examples of the abuses trademark owners have  
committed, then referred to the A Hearst media fellow and pointed out  
that their publication of Esquire magazine doesn't enable them to  
take away any domain name with the word "esquire" in it, especially  
not in the case of Frank Schilling, who is is a lawyer and the  
gentleman named in a suit by Hearst. John defended Franks case and  
prevailed, which caused Berryhill to say in a rather surly tone "you  
lost that suit in court, you don't get a second chance here" to  
Hearst media's stated desire to be able to preempt domains that have  
any of their trademarks in it, and note that WIPO wants to see this too.

Under that system, Frank Schilling would never have been able to get  
a domain with the name used by his profession that also happens to be  
the name of a soft core porn magazine published by Hearst media -  
Esquire. This is predatory.
Another totally bizarre item was a suggestion that everybody who gets  
a domain name pays an extra deposit when they buy it, and if they  
don't abuse a trademark then they get it back later.

I think this is a great idea and the city of New York should do this  
too, when you visit NYC you should have to pay a deposit which you  
get back if you don't commit a crime. So much for presumption of  
innocence and hello Napoleonic law. Isn't this America?

The back chatter online was amusing, the feed glitched many times,  
often spectacularly so - windows would bounce around, and one point  
the audio got mangled and began doing a sort of rap/dj kinda thing -  
I sort of hoped the windows would start hopping around and that  
Anthony Van Couvering, would start dancing to the beat as he was  
appeared to be either agitated or had to pee while on camera standing  
behind the guy who got to answer questions a the moment.
ICANN has been trying remote participation ever since they started  
this dog and pony show at Harvard in the Berkman center a decade ago.  
But In the one or two meetings I participated in ten years ago there  
was a lot greater attention paid to the online comments.

In this event for each panel a 3 minute (roughly) slice was allocated  
once per panel (3 in all) and a very small sampling of the questions  
were articulated. I remember that originally, as ICANN grew in the  
first year of its life, they tried to alternate between a question  
from the floor and a question from the online community, but that's  
been backed of dramatically I see.
The last panel was concerned with scalability issues of the root  
zone. You know, what happens when you add lots of TLDs to the root  
zone. Of course they don't know because they've never done that, and  
deny even the very existence of organizations that have, a case where  
policy concerning that lofy and oft repeated goal of "stability of  
the Internet" is being formulated by guesses because the people with  
real data are a material threat to our authority so we'll just ignore  
them.

Never mind that any real work addressing the issue of load on the  
root zone is done at ISC where BIND is maintained in a study paid for  
by the NSF or that Denninger of eDNS and Vixie of ISC (who wrote  
BIND) looked at this exact problem in detail in 1996 and found no  
issues going up to 10,000 TLDs. How soon they forget. Or haven't  
bothered to look.

It was fun seeing a lot of old names there, but so many people have  
dropped out and given up. It did give me an overwhelming sense of  
deja vu though, as I can't say any amount of substantive dialogue was  
heard - it's all superficial rehashing of the same thing we've been  
talking about since 1996 when NSI began charging for domains and Carl  
Oppedahl ranted on about NSI's horribly "flawed domain name dispute  
policy".

This is one case where nostalgia IS what it used to be.

I submitted my two questions which appeared in the queue to be asked,  
then vanished a short time later never to be heard from again.

Some things just never change. But here are the two questions I posed.



IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
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