[governance] Legal Action Filed Attempting to Halt IANA Transition

Sat Oct 1 09:00:29 EDT 2016

In the battle of the Michaels, looks like Michael F won.

I want to weigh in on the property argument. I have argued in various contexts that a domain name registration constitutes a property right, and so have Konstantinos Komaitis and other legal/economics scholars. The Kremen case, holding that a second level domain is property, also is about a domain name registration.

But what the NTIA is giving up is not a domain name. They are giving up the power to approve changes to the root zone file (RZF). That is neither a domain name nor a property right. The RZF is a publicly shared data set.

--MM

From: governance-request at lists.igcaucus.org [mailto:governance-request at lists.igcaucus.org] On Behalf Of Michael Palage
Sent: Friday, September 30, 2016 1:42 AM
To: governance at lists.igcaucus.org; 'Michael Froomkin - U.Miami School of Law' <froomkin at law.miami.edu>
Subject: RE: [governance] Legal Action Filed Attempting to Halt IANA Transition

Michael,

Thanks for your excellent analysis on this case at https://www.discourse.net/2016/09/why-the-attempt-to-enjoin-the-iana-transfer-is-baseless/. However, here is why I am not so quick to dismiss this as a meritless case.

I think the Property Claim is not completely meritless and here is why. While the most recent GAO report held that "It is unlikely that either the authoritative root zone file-the public "address book" for the top level of the Internet domain name system-or the Internet domain name system as a whole, is U.S. Government property under Article IV." It did preface this finding with the acknowledgement of this being a "a case of first impression."

When focusing on the "property" argument, I have always focused on the Kremin case in the Ninth Circuit which established a three part property test, and the Virginia Supreme Court in the Umbro case which held that domain names are a mere service. Now in connection with Weinstein vs. Iran, the Court of Appeals for the DC affirmed the lower court ruling on different grounds, but NOT on the ground of the ccTLD being property like the lower court had originally found: "We assume without deciding that the ccTLDs the plaintiffs seek constitute "property" under the FSIA and, further, that the defendant sovereigns have some attachable ownership interest in them."

So let's look closely at the three part property test that the 9th Circuit established in Kermin: "First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity."

I think it could reasonably be argued that that IANA contract/functions meets each of these criteria.

Although I would argue there is potentially additional evidence supporting a property claim as I set forth in my public comment opposing the .COM extension and RZMA agreement, see https://forum.icann.org/lists/comments-com-amendment-30jun16/msg00091.html

In this comment I raised specific questions regarding potential intellectual property rights associated with the Root Zone Management Functions:

However, the provisions regarding

potential claims of intellectual property rights are deeply troubling for

the reasons set forth below.

The joint announcement by VRSN and ICANN, makes specific reference to "work

product." This is a legal term of art usually referring to protection

afforded under copyright law. See

http://www.ntia.doc.gov/files/ntia/publications/root_zone_administrator_proposal-relatedtoiana_functionsste-final.pdf

Second, the DNSSEC Practice Statement for the Root Zone ZSK operator, see

http://www.root-dnssec.org/wp-content/uploads/2010/06/vrsn-dps-00.txt

contains the following Copyright Notice:

   Copyright 2010 by VeriSign, Inc., and by Internet Corporation for

   Assigned Names and Numbers.  This work is based on the Certification

Historically, VRSN (and its predecessor NSI) had previously sought to

leverage copyright law to extend its grip over certain domain name

activities.  By way of example when the US was seeking to synchronize US

copyright law with European copyright law regarding the sui generis

protection of database compilations in the late 90s, see

http://www.techlawjournal.com/intelpro/19990523.htm  The local congressman

from Virginia was very active on this topic and even proposed his own bill.

Congressman Bliley also submitted letters to ICANN and NTIA raising

intellectual property claims regarding certain domain name functions.  See

this response from NTIA to the Congress (see

https://www.ntia.doc.gov/other-publication/1999/department-commerce-response-letter-chairman-committee-commerce-united-states  ) and this response from

ICANN to the Congressman denying any potential copyright claims in the data

(see https://www.icann.org/resources/unthemed-pages/bliley-response-1999-07-08-en )

See this relevant excerpt from the ICANN communication to the Congressman:

Under current United States law, it is highly doubtful that collection by

registrars of this factual information gives rise to any enforceable

intellectual property rights. Under

< http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=499&invol=340  > Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S.

340 (1991), copyright may not be claimed in factual information itself, but

only in the selection, coordination, or arrangement of the information in a

sufficiently original way. It therefore violates no copyright for others to

use the registrar data for their own purposes according to their own

selection, coordination, and arrangement. Similarly, because the registrar

data has long been available to the public for the asking, both by Internet

tradition and by U.S. Government requirements, it would not seem to be

subject to legitimate claims of trade-secret rights.

Although not giving rise to intellectual-property rights under current U.S.

law, registrar data may be subject to claims of intellectual property rights

under the laws of other countries, or under future laws that may be enacted

in this country at the state or federal level. Claims under such laws, if

not accommodated to the Internet's needs, could complicate the efforts of

the technical community to ensure stable and reliable operation of the

Internet and the legitimate needs of the Internet user community for

information about domain names. Pending proposals for extending U.S.

intellectual-property law to cover databases, fortunately, take into account

these special operational needs of the Internet. For example, H.R. 1858 (the

Consumer and Investor Access to Information Act of 1999)

<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_bills&do

cid=f:h1858ih.txt.pdf> , which protects publishers from others who seek to

compete unfairly by copying and selling the publishers' databases,

specifically excludes coverage of databases "incorporating information

collected or organized . . . to perform the function of addressing, routing,

transmitting, or storing Internet communications . . . ."

Now while the proposed RZMA does contain a provision disclaiming any

Intellectual Property claims in the underlying data (a good thing), the

remaining carve out regarding retention of rights is deeply troubling since

any Intellectual Property claims are not bound by

consultation/mediation/resolution. Instead, Section 7(g)(vi) provides that

either party may commence a "civil action" to "prevent or enjoin the breach

of any Intellectual Property Rights or confidentiality obligations of the

other Party". This represents another example of how ICANN has provided

preferential treatment to VeriSign. Almost every other agreement entered

into by ICANN contains a provision preventing a party from seeking

resolution before a court. In fact, ICANN has recently submitted an Appeal

to the Ninth Circuit in connection with the .AFRICA dispute arguing this

very point. Therefore, it makes no sense why ICANN would provide this

concession to VeriSign.

The RZM functionality is too important for any one party (neither VeriSign

or ICANN) to claim any proprietary rights. This is a global resource and the

global internet community should be able to rely upon any qualified third

party undertaking this service if/when the global internet community lose

trust in either VeriSign or ICANN.

Therefore, there should be a provision in the RZMA that specifically

prohibits either party ICANN or VRSN from making any intellectual property

claims to the processes involved in the signing/publishing of the root zone.

Notwithstanding VeriSign's competence to provide the RZM functions, if

VeriSign fails to waive any and all Intellectual Property Rights in

connection with the RZM functions, ICANN should serious consider allocating

the necessary financial resources from strategic reserve or auction proceeds

to ensure that there are NO proprietary rights associated with the RZM

functions.

And this actually leads me to another question which no one has ever been able to answer, who "owns" the key signing key?   Again applying the three part Kremin test I think this crypto key could be found to be property.

So this is why I think the Plaintiffs' attorneys might be able to convince a judge that the property claim is not completely meritless.

I welcome any feedback that you might have in connection with my analysis.

Best regards,

Michael

-----Original Message-----
From: governance-request at lists.igcaucus.org<mailto:governance-request at lists.igcaucus.org> [mailto:governance-request at lists.igcaucus.org] On Behalf Of Michael Froomkin - U.Miami School of Law
Sent: Thursday, September 29, 2016 2:13 PM
To: governance at lists.igcaucus.org<mailto:governance at lists.igcaucus.org>; Michael Palage <mike at palage.com<mailto:mike at palage.com>>
Subject: Re: [governance] Legal Action Filed Attempting to Halt IANA Transition

Textbook case of "meritless lawsuit" IMHO.

On Thu, 29 Sep 2016, Michael Palage wrote:

>

> Hello All,

>

>

>

> Just a brief update on the latest legal attempt to halt the IANA

> transition,

> seehttp://techfreedom.org/post/151100916894/four-states-sue-to-delay-i

> ana-tran

> sition

>

>

>

> Best regards,

>

>

>

> Michael

>

>

>

--

A. Michael Froomkin http://law.tm 305-284-4285 ssrn: bit.ly/1XlTJLz Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA

                            It's hot here!!!
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