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[Comment-Ip] Reply comment on the "Copyright Industries" submission

The submission of the Copyright Industries to ICANN contains this little gem:

> We urge ICANN and other players to adopt many of the key
> recommendations promptly.  (Within the ICANN DNSO, review of the WIPO
> Final Report should be delegated to the Intellectual Property
> Constituency, representing owners of copyrights and trademarks.)

One of the reasons many of us are urging ICANN *not* to make any ruling on any aspect of the WIPO recommendations is that the report and the process that developed it represent the views of the intellectual property community exclusively. WIPO is an organization entirely devoted to the preservation and advancement of intellectual property. While it may have invited others to participate in its process, WIPO itself does not represent the views or interests of the Internet technical community, Internet users, Internet service providers, registries and registrars, or even e-commerce interests that are not specifically aligned with IPR.

It is not persuasive to say that WIPO "listened" to other views. 80% of the interventions in the WIPO proceeding came from trademark lawyers and intellectual property interests. The report was written by WIPO staff, which is only interested in satisfying its primary constituency and was free to adopt or ignore whatever it chose. WIPO and the IPR industries have had their say. We now know what they want.

But within ICANN, the intellectual property interests are only one of many different constituencies. ICANN must be responsive to a much broader range of interests than WIPO. Only the Internet community can decide for itself, in its own forum, the proper balance between the protection of IPR and the growth and development of the Internet domain name system. Only the DNSO as a whole is qualified to make the necessary tradeoffs. ICANN's deliberative process will not be dominated by the narrow self-interest of the trademark holders, as the WIPO process was.

It is, therefore, transparently self-serving for intellectual property interests to now suggest that in its consideration of the WIPO recommendations, ICANN should not even allow other constituencies to participate. I am sure that this suggestion will not be taken seriously by the Board. But it does reveal just how nervous the intellectual property interests are about consideration of the WIPO report by the DNSO. The Board would never agree to short-circuit the deliberative process by allowing only one special, narrow constituency to make rulings for the entire DNSO.

And yet, if ICANN adopts any of the WIPO deliberations without a DNSO, won't it be doing exactly the same thing?

m i l t o n   m u e l l e r // m u e l l e r @ s y r . e d u
syracuse university          http://istweb.syr.edu/~mueller/