[governance] NTIA on certain geographic names...

Mon Jul 8 17:38:04 EDT 2013

Milton,

Thanks for the link. First off, allow me to clarify that I wasn't
recognizing any privileges  for national government to object and block
geographic name-related domain name applications. As a matter of fact, I
referred in my message to people and local community vs. central
government. By that, I mean dwellers, associations, organizations,
businesses, etc. appealing directly to ICANN in its bottom-up processes (no
central government representation is required here.) I do think those
grassroots stakeholders need to be heard and careful attention should be
paid to their concerns. I do not think at all that they "own" the name of
their location, but just that a case can be made --and should be heard--
that they might have a higher stake in that name so far (say, before it
becomes a TLD) than most of of us. It's up to ICANN to put in place the
relevant criteria against which to evaluate those objections (BTW, I
thought there was something like this as part of the new gTLD policy when
it began to take shape back in 2006/07?)

For instance, when we see the string "THAI" or hear the sound of that word
--particularly in a geographical context-- most of us are most likely to
think of something that relates to the country called Thailand. The country
itself already has its ccTLD, therefore I wouldn't expect the queen of
Thailand and the government under her rule to claim any particular
privilege over who should get to operate a gTLD by that name and how. A
famous Thai restaurant located in NYC or a Buddhist organization located in
Bangkok may equally legitimately be the applicant for .THAI gTLD, whether
the restaurant owner is a Thai or a US citizen, etc. But whoever is the
applicant, any entity that can claim an established connection with the
country Thailand and its cultures should have their objections, if any,
specifically and clearly addressed by ICANN before authorizing the gTLD
into operation. (Please note: this is just an example, partly made up for
explaining purposes as a model can be --nothing to do with the actual .THAI
application.)

Now, this (the issue of geographic locations as gTLDs) will be complicated
a little further in the case of existing trademarks by those names. First
of all, there is a fundamental difference that you don't seem to take into
account in your reflection in the blog post. A registered trademark is
jurisdiction-bound and does neither automatically nor legally preclude
someone registering the same name somewhere else (even though it might be
fair to assume that the existence of a trademark that is globally
recognizable under the same name might be taken into account in the
registration vetting process at other places where the trademark might not
have been locally registered.) Internet domain names are quite different in
that once you register them or are granted the TLD operation, no other
person can use them as domain names at the same level anywhere else in the
world/Internet. So the comparison between trademark registration process
and rights to domain name registration process and rights is not that
simple or straightforward. For the Internet, the constituency is virtually
global or at least global by default, which is not the case for IPR
regimes. So it clearly makes sense that you have a potential for more
objections in the former than in the latter.

So because of the above, even if the people from the Amazon or Patagonia
never had plans to make use of those names, they may still be awakened by
the idea that someone else may have as much control over it and make as
much money with it as Verisign has over and makes with dotcom. I am not
sure whether such motivation for objection is necessarily despicable;
rather, I could understand why the concerned communities might want to have
a say in the way control is exerted over the name they share and were known
by across the world before the Internet (keep in mind that for many many
people around the world outside US, Amazon is still a forest in South
America.)

Again, all what I'm saying here is that those concerns cannot be dismissed
and need serious attention for some arrangement to be worked out (thus, my
agreement with the NTIA's statement on that particular aspect.) As much as
I wish your hopes for human beings to be purely/fully rational beings could
come through so that we can solve all our collective problems through legal
algorithms :-) I'm afraid we as species still have a long way to go and
will keep making a fuss about our dear and non-rational collective identity
issues.

Regarding the NTIA statement more specifically, I agree with you only
half-way on the notion that "In effect, the US has told the objecting
governments that they do not need to compromise, or negotiate in good faith
with the gTLD applicants. Because if there is no agreement they still get
what they want: advice from the GAC to kill the applications. Now that they
know that the US will not stand in the way of any such GAC vote, why should
they be flexible?" I though you said that any government --not just US like
by a special veto power-- can raise objections to the GAC opinion (in the
making) and therefore prevent a consensus which is necessary to demand
ICANN considering (let alone following) the GAC advisory. In that case, it
seems to me what USG is saying is: "If I were to be the only one to
disagree with that, then I'll let the GAC go with it." But in case Sweden,
Australia, Luxembourg (who know?), etc. strongly oppose that opinion, then
there won't be consensus anyway, right?

You've got to be sympathetic to USG in these tough times... At some point,
or once in a while, you need to give something to all those frustrated
governments to make them believe that you seriously think they are still
relevant in the governance model you're proposing: What better time than in
the aftermath of Prism?

Mawaki

-------
Mawaki Chango, PhD
Internet Policy Consultant
@chamawak

On Mon, Jul 8, 2013 at 5:30 PM, Milton L Mueller <mueller at syr.edu> wrote:

>  Mawaki****
>
> Here is my take on the NTIA statement:
> http://www.internetgovernance.org/2013/07/06/the-ntias-new-policy-of-appeasement/
> ****
>
> ** **
>
> From my point of view, I would reject BOTH the trademark community's
> insistence that they own generic words in the domain name space because
> they are trademarked somewhere, AND your belief that local communities
> "own" names (which may appear in dozens of other places or could be used in
> ways which do not create confusion or violate any legal rights). Those
> views are perfectly symmetrical and are based on the nominal fallacy
>  described below.****
>
> ** **
>
> So much discussion of this issue is founded on the assumption that the
> exclusive occupation of a domain name string also means exclusive ownership
> or occupation of a market or region semantically referenced by a string.
> This assumption is obviously false: registration of the string .BOOK does
> NOT give anyone any special market control over books, or over the use of
> the word 'book' in thousands of other contexts, and the same goes for
> "Amazon" or geographic names. Let people use words freely  and creatively
> and unless specific, well-bounded rights are violated, e.g. via deliberate
> deception or misleading uses, ****
>
> ** **
>
> *From:* governance-request at lists.igcaucus.org [mailto:
> governance-request at lists.igcaucus.org] *On Behalf Of *Mawaki Chango
> *Sent:* Monday, July 08, 2013 6:19 AM
> *To:* Internet Governance; Carlos A. Afonso
> *Subject:* Re: [governance] NTIA on certain geographic names...****
>
> ** **
>
> It makes sense to me that national sovereignty does not provide for any
> exclusive rights over the use of names of places or words of a language,
> even if that language is only spoken in one country on earth. However, the
> people living in those places (eg, cities) should have a say in one form or
> the other, to the extent that the name at hand unambiguously or
> presumptively designates one such place or that the TLD string is meant to
> do so. In other terms, this should be the business of the local community,
> not the central government.****
>
> ** **
>
> On the other hand, I wish the US government recognizes that what cannot be
> granted to national sovereignty in terms of gTLD strings cannot and should
> not be granted to intellectual property rights (IPR) holders. There was a
> time when registries eemed to claim a sort of PR over the meaning of the
> TLD they're managing, or IPR stakeholders generally over that of their
> ASCII domain names, and tried to preempt ownership of any future IDN
> versions. I don't even understand how we got there, since I thought
> registries do not have property rights per se over (or ownership of) the
> gTLD. While I exited that debate some time ago, I hope this is a settled
> matter that IPR holders over a given string of characters in a given
> jurisdiction do not automatically enjoy an exclusive right over the
> intended meaning of that string in all jurisdictions, and thus, over all
> versions of it in any scripts at the same domain name level. The global
> nature of the Internet notwithstanding, the ultimate sources of actual
> rights are still off line.****
>
> ** **
>
> Mawaki****
>
> ** **
>
> ** **
>
> ** **
>
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