[governance] RE: Human rights and new gTLDs

Wed Sep 26 10:19:54 EDT 2007

On Wed, 26 Sep 2007, David Goldstein wrote:

> I'm beginning to see some reasons for allowing many more gTLDs. A 
> question that has occurred to me though - what about ccTLDs? They have 
> invested a lot of time and money building up something that is often 
> quite a strong "brand" and gaining consumer confidence.

The idea that any first-movers should be able to engage in 
anti-competitive behavior of stopping competitors merely because they were 
first is now long discredited in the legal and economic literature.

To the extent that ccTLDs (and others) have built a 'brand' and 'trust' 
they will reap those benefits by retaining their customers and getting new 
ones -- even if they charge a premium.  Let a 1000 flowers bloom.

If you mean - should we give every government a second ccTLD-like name to 
play with and/or sell -- why not, as part of a general expansion in the 
namespace?

>
> And then there's cybersquatting - to me the scourge of the domain name 
> business. And then there's security for companies. If I'm selling 
> widgets at widget.com, yet someone tries to copy me at widgets.sdgf, and 
> there are hundreds of TLDs, how am I as a businessman to easily keep 
> track of this? It's hard enough now.

If you have a common name like 'widgets' or 'delta' or indeed any name 
other than a coined (made up) name like 'exxon' then you are already in a 
world where there is vast concurrent trademark use along both geographic 
and sectoral lines.  We allow the same name to be used for the same 
business in different countries; we allow the same name to used for 
different types of business in the same country.  It has always been thus. 
Creating new TLDs lets those firms that were a little later to the party 
-- smaller firms, third world firms -- have a form of nearer-parity with 
the first-movers.  Many of the registrants will be legit, not squatters. 
(As for the coined names, there are also legal non-commercial uses, e.g. I 
could create exxon.tld to critique its lobbying strategy or its role in 
global warming.)

Recall that squatters are people who buy names hoping to ransom them to 
the holder of a cognate TM; ownership of a mark does not (contary to all 
the PR by mark-holders) actually give you any legal right to domain name, 
rather all it gives you is the right to prevent competing uses that might 
confuse or tend to mislead customers.

If there are enough TLDs created, the squatter's power to deny names to 
people who would make legal and higher-value uses of them (often TM 
holders) will be greatly reduced since the cost of hoarding goes up 
linearly with the number of new TLDs but the scarcity factor drops quickly 
past some unknown point.  Many new TLDs kills cyberquatting just by the 
work of normal economics.  It is  the drip-drip strategy that keeps 
squatters in business: just enough new TLDs to hoard, not too many to make 
the bottom fall out of the market.

And finally, the UDRP isn't going away and it has proved remarkably 
friendly to plaintiff TM/SM holders.  See generally ICANN's UDRP: Its 
Causes and (Partial) Cures, 67 BROOK. L. REV. 605 (2002), available at 
http://www.law.miami.edu/~froomkin/articles/udrp.pdf

>
> I'm interested in responses.

You asked...

>
> Cheers
> David
>
>
> ----- Original Message ----
> From: Michael Froomkin - U.Miami School of Law <froomkin at law.miami.edu>
> To: governance at lists.cpsr.org; Vittorio Bertola <vb at bertola.eu>
> Cc: Milton L Mueller <mueller at syr.edu>
> Sent: Wednesday, 26 September, 2007 11:17:13 PM
> Subject: Re: [governance] RE: Human rights and new gTLDs
>
> On Wed, 26 Sep 2007, Vittorio Bertola wrote:
>
>> Milton L Mueller ha scritto:
>>>> you need to get the www.info.abortion URL to speak about abortion, and
>>>> that your freedom of expression would be seriously harmed if you had to
>>>> resort to publishing the same speech at www.abortion.info instead.
>>>
>>> In the latter paragraph, you are arguing that there is no difference in
>>> the two identifier formulations and that the issue is trivial. In the
>>> earlier paragraph, you are saying that the mere existence of the TLD
>>> "slaps people in the face" and is "highly provocative." Which argument
>>> are you making, my friend?
>>
>> I am making the argument that it does not make any practical difference for
>> the freedom and accessibility of the *content* whether it is located at the
>> first or at the second identifier. You could say the same things without
>
> I submit that there are two differences: one minor, one hard to quantify.
> The minor difference is that shorter URLs look better on a bus or a
> billboard and are easier to remember.  The other, more important but
> unquantifiable, difference is that as soon as you introduce another
> intermediary (the people runing the registry, the registrar, whatever),
> you add another party that might choose to engage in censorship by
> terminating the agreement.  If I have .mine I need only wory about ICANN
> (and the US government and/or GAC) assuming I can choose a friendly host
> for my site.  If I have mine.yours I have to worry about ICANN, my
> registry and my registrar (and associated governments).  If I have
> mine.hers.yours (or hers.yours/mysite), I have at least two more people to
> worry about, and so on.
>
> I am not saying that this factor alone justifies TLD expansion (I think
> the economic case does that).  I am merely suggesting that there may in
> fact be a practical difference here of somewhat uncertain scope and
> non-zero salience.
>
> [...]
>
>

-- 
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A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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