dispute policy

[Mikki Barry <ooblick@netpolicy.com>]

Individual and non-profit domain name holders are impacted in a significant
and negative manner.

Both have been placed at significant risk of expropriation of their
existing domain names, without compensation and without benefit of any form
of legal hearing or due process.  And both have been placed in a position
of being second-class citizens when attempting to obtain new domain names.

Neither yet has any position with any meaningful voice within ICANN's
structure: ICANN has explicitly rejected the participation of
non-commercial interests and has taken multiple steps to prevent
individuals from having any meaningful voice at any level of ICANN.

 Although ICANNšs specific dispute resolution policies have not yet been
chosen,  DNRC has reviewed the latest draft that has been circulated and
offers the following specific comments:

1) There has been no consensus of the Internet community that a uniform
dispute resolution policy is workable or even desirable.  Generic Top Level
Domains (gTLDs) have been created with specific purposes in mind.
Currently, we have .com, .org, .net as multi purpose gTLDs subject to
dispute policies.  .Org is purportedly used for non profit organizations.
As such, a policy premised on use in commerce would be an overreaching of
the Lanham Act which regulates commerce.  .Net, while mostly commercial,
could also be used for non-commercial networks.  As such, a commercial
policy would miss the non-commercial speech elements that are inherent in
domain names.  New proposed gTLDs include those that will be populated
largely with individuals promoting non-commercial thoughts and ideas,
artistic organizations and individuals also in non-commercial areas, as
well as different types of commercial entities.  One uniform dispute policy
will not address the plethora of uses that the Internet can be and has been
put to.

2) This "voluntary" dispute policy is voluntary only at the registrar
level, and not at the domain name holder level.  Given that to date ICANN
has stated that all potential registrars must adhere to this "voluntary"
policy, even the registrars will have little choice in the matter.

3) The definition of "bad faith" in ICANNšs dispute policies (written
largely by WIPO, the World Intellectual Property Organization) is flawed
and should be revisited.  There are still many cases under this definition,
where an innocent domain name holder operating legitimately can be charged
with being a "cybersquatter" and/or having registered the domain name in
"bad faith" triggering this dispute policy.  As an example, "bad faith"
charges may be triggered by something as innocent as a domain name holderšs
wish to avoid litigation costs by settling a claim.  If the domain name
holder offers to sell the name to avoid conflict, or even asks for
reimbursement of registration fees, this is Œbad faith. "

4) ICANNšs latest proposed dispute policy mandates that the domain name
holder can be challenged and subjected to this dispute policy on a mere
allegation of  "bad faith conduct" by a challenger.  The chosen arbitrator
could then mandate that the domain name be cancelled or transferred,
forcing the domain name holder to go to court to get it back.  The domain
name holder has ten days after the arbitratoršs decision to obtain an
attorney, and file a lawsuit to get the domain name back, else the name
will be cancelled, destroying the domain name holderšs business or message.
Meantime, the challenger has no downside.  Even an improper, retaliatory,
or frivolous charge of bad faith will be investigated, and will subject the
domain name holder to cost in time and fees.  The domain name holder has no
recourse against the challenger in these cases.

5) Arbitrators can, in their sole discretion, "seal" their decisions, thus
depriving the public of important precedents in a new and growing field of
law.  Mandatory publication should be the rule, with minor exceptions
allowed for highly unusual cases.

ICANNšs dispute resolution policy could stifle political speech, parody,
and criticism.  If a trademark or service mark is used as part of the
domain name, or the domain name is thought in any way to be similar to a
trademark or service mark, the ICANN policy may call this "bad faith" and
subject the domain name holder to cancellation and/or transfer the name to
the challenger.

This is significant when you consider that critics, political pundits,
religious groups and others with significant non-commercial messages are
seeking the very same audience as corresponding trademark, service mark, or
other intellectual property holders.  The only way to reach this audience
is often to draw the readeršs attention via a catchy title, slogan, or in
the case of the Internet, through the domain name.  While in publishing,
one can use a title such as "Microsoft :  Why I Donšt Like Their Software,"
the corresponding method on the Internet would be something like
"Ihatemicrosoft.com."  Under the ICANN dispute policy, if any commercial
use whatsoever is found, then the domain name could be cancelled or
transferred, and the arbitration panelšs fees may be charged to the domain
name holder.  Essentially, this would be a penalty for otherwise protected
speech.

While the ICANN policy is said to be predicated on commercial messages, it
is important to note that in the case of Jews for Jesus v. Brodsky  the
court found that a mere hyperlink to an organization that sold religious
tracts created commercial use, and stripped Steven Brodsky of his domain
name.    The DNRC is concerned that such twisting of the spirit of the
Lanham Act and intellectual property law could be extended to stifle other
religious, political, and non-commercial commentary.  This would indeed
crush the very robust means of communication that has made the Internet so
desirable to large corporations.