From: DENNIS WILSON <DWILSON@baker-hostetler.com>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/23/98 2:43pm
Subject: Submission of Comments by Time Warner Inc.

Attached are Time Warner Inc.'s comments on the "Discussion Draft on
Technical Management of Internet Domain Names."
These comments are submitted in Microsoft Word 8.0 format.

CC: NTIADC40.SMTP40("arthur.sackler@twi.com","nils_vic...

Time Warner Inc.'s Comments on the Department of Commerceís "Proposal to Improve Technical Management of Internet Names and Addresses"

Time Warner Inc. ("Time Warner") appreciates the opportunity to comment on the Department of Commerceís "Proposal to Improve Technical Management of Internet Names and Addresses" (commonly, and hereinafter, referred to as the "Green Paper"). Time Warner commends the Departmentís efforts in the preparation of the Green Paper, and looks forward to the Departmentís continued involvement in the development of this aspect of the Internet.

Time Warner is the world's leading entertainment and media company. Time Warner has experienced many important changes in the distribution of entertainment and news, and appreciates the significance of maintaining the vital and stable development of the Internet. As an active online company, a worldwide distributor of information, and the owner of internationally famous intellectual property, Time Warner understands the countervailing interests which the domain name system must balance.

Time Warner supports the self-governing framework proposed by the Department in the Green Paper. Time Warner submits the following comments in order to assist the U.S. Government in developing an appropriate policy for the privatized management of the domain name system. These comments are animated by the need to have a rational approach to protect trademark rights while permitting the flexible and unregulated growth of the Internet.

  1. OVERALL APPROACH
  2. According to one estimate, the number of Internet users will pass the 100 million mark this year, will double again by 2001, and will reach one billion by 2005. The value of the Internet market is expected to increase from its current $10 billion per year to $220 billion in 2001. Clearly, millions of individuals, educational institutions, companies, and many nations around the world, have benefited from the growth of the Internet, and many millions more will in the near future.

    The development of the Internet as a viable commercial and educational medium has led to an increased appetite for expansion of the Internetís capabilities, including the availability of additional generic top-level domain names ("gTLDs"). Time Warner recognizes that an orderly process is essential to manage the domain name system, including an appropriate method of addressing trademark issues. We urge that the movement to a domain name system involving private governance, multiple registries, and multiple registrars be done carefully. We welcome the U.S. Government's involvement as a steadying force in evolving the domain name system into a self-governing system.

    Time Warner notes that Senator Leahy has introduced a bill (S. 1727, 105th Cong., 2d. Sess. (1998)) which addresses the Green Paper's call for a study to determine the effects of adding new gTLDs by proposing funding for such a study to be conducted by the National Research Council of the National Academy of Sciences. Time Warner welcomes this reasoned approach to domain name expansion and suggests that the findings of this study be published prior to the expansion of the domain name system. A deliberate and measured approach is necessary to ensure that Internet growth goes on, and becomes as vital to the new millenium as its potential suggests.

  3. CONSUMER PROTECTION ISSUES

The Internet brings consumers closer than ever before to the distributors of entertainment and news. This benefits consumers by making available more information, more sources of information, and more efficient access to that information. It also benefits distributors by allowing more direct access to consumers than previous media. The domain name system, which identifies the sources of this information, must be managed carefully in order to ensure that the Internet progresses as a medium in which both consumers and businesses are able to take advantage of the benefits it provides.

Trademark law, at its essence, serves to prevent consumer confusion. Because of the scope and size of the Internet, and the ease with which users may offer new services, the potential for confusion is far greater than in traditional commercial media. The corresponding need to protect consumers is also greater. In addition, trademark law also provides rights owners the ability to identify and distinguish their products and services. Therefore, it is imperative that the expansion of the domain name system be designed to enhance the ability of consumers and rights owners to identify and distinguish products and services.

    1. Application Process

An important and inexpensive method of preventing domain name disputes is the implementation of a nondiscriminatory application process. Domain name disputes, as well as other disputes between users of the Internet, are often exacerbated by the failure of domain name registrants to provide accurate identifying information. Cybersquatters (those who warehouse domain names, including domain names which simulate trademarks, for the purpose of re-selling the domain names) commonly submit false information on domain name applications. This prevents legitimate users from locating the actual registrant in the hope of easily resolving any dispute. Stringent application requirements will likely deter such bad faith conduct by creating clear accountability.

Time Warner agrees that domain name applicants should be required to furnish name and contact information so that parties are able to locate the applicants or their representatives. Time Warner further agrees that domain name applicants should be required to make a certified statement that they intend to use the domain name and, to the best of their knowledge, know of no entity with superior rights in the domain name. In addition, Time Warner recommends that the following information be required in all domain name applications:

    1. Detailed name and address information, including phone numbers and e-mail addresses.
    2. The appointment of an agent for service of process, and corresponding address information, including e-mail addresses.
    3. A statement that the applicant intends to use the requested domain name within a time certain.
    4. A statement of the reason for applying for the requested domain name. For example only, a statement that the applicant has trademark rights in the requested domain name, the domain name represents the applicant's personal name, or the domain name identifies the applicant's intended use.
    5. A non-binding statement of the intended use of the domain name (i.e., e-mail services, website).
    6. A non-binding statement of the intended industry relating to the domain name. This statement could be broad. For example, a retail store applicant could state that it intends to use the website to advertise its store.
    7. A statement by the applicant that, to the best of its knowledge, the domain name does not infringe trademark or other rights of any other party.
    8. A statement by the applicant that it will provide updated information within two weeks of any information changes.

Time Warner agrees with the Green Paper's proposal that domain name applicants admit to jurisdiction where the registry is domiciled, where the registry database is maintained, or where the root server is maintained, in addition to where personal jurisdiction exists. This agreement should be part of the application process.

In addition, the application process must be coordinated across Registries to avoid differing policies and the introduction of "safe haven" gTLDs for those who submit false information. Therefore, all Registries should use the same application requirements.

    1. Renewal Process
    2. In order to maintain the integrity of the application process, renewal of domain name registrations must also be required. While the Green Paper does not specifically address renewal, it does propose that domain name registrants be required to keep the registration information up to date. Time Warner recommends that in order to insulate the domain name system from abuse and waste, domain names should be renewed yearly. Annual renewal will help assure that registrant information is accurate. In addition, the renewal process should verify that the domain name is being used, should require a statement of the actual use for the domain name, and should confirm that the registrantís use does not, to the best of its knowledge, infringe the trademark or other rights of third parties.

    3. Examination of Applications and Renewals
    4. Cybersquatters often register domain names without paying for them, in anticipation of a sale before the registration payment is required. In keeping with the above requirements and goals, prepayment of any registration fees should be required before domain name applications are examined for completeness. This will discourage cybersquatters from warehousing domain names. Upon submission of the registration fee, applications and renewals should be examined for completeness, and should be rejected if incomplete.

      Moreover, Time Warner recommends that a process be implemented for removing unused domain names to prevent the waste of valuable domain name space.

    5. Publication
    6. To afford consumers and trademark owners efficient access to registration information, complete applications for domain names should be posted on a publicly available and searchable website shortly after their receipt. A single website database, comprised of application information across all gTLDs, should be operated by the "non-profit corporation" referenced in the Green Paper or jointly operated by the Registries. The information regarding registered domain names should be maintained and updated as often as possible. In addition, the website database should be easily searchable by all fields on the domain name application.

    7. Dispute Resolution

Time Warner encourages the development of informal, administrative mechanisms to resolve domain name disputes. Through such mechanisms, rights owners may achieve speedy resolution to disputes that would otherwise mire the parties and the domain name system in expensive and lengthy litigation. However, dispute resolution mechanisms must be an alternative to litigation, not a replacement. Appendix 2 to the Green Paper recognizes that Registries and Registrars must "abide by the decisions resulting from an agreed upon dispute resolution process or by the decision of a court of competent jurisdiction." However, the Green Paper does not address the situation in which the dispute resolution system and the courts issue conflicting decisions. It is imperative to the functionality and endurance of the domain name system that Registries and Registrars abide by the rulings of courts with competent jurisdiction, even where contrary decisions have been issued through the dispute resolution process. The dispute resolution system must explicitly affirm that courts with competent jurisdiction are the ultimate authority in domain name disputes. In order to secure the integrity of the domain name system, "competent jurisdiction" should be defined to include only courts in those countries with strong and reciprocal trademark laws (as is required of the countries which are signatories to the Paris Convention).

    1. Development of Dispute Resolution System
    2. Time Warner disagrees with The Green Paperís suggestion that each Registry develop its own dispute resolution policies. Instead, Time Warner proposes that the U.S. Government, and other interested nations and parties (including the trademark community), develop the dispute resolution policy to be utilized ("Dispute Resolution Policy"). Time Warner proposes that a single dispute resolution policy be utilized by all Registries to avoid discrepancies and to ensure fairness across the gTLDs. To safeguard the stability of the domain name system and its users, it is imperative that the U.S. Government not leave the resolution of intellectual property disputes and other domain name disputes solely to interested businesses (i.e., the Registries).

       

    3. Structure of Dispute Resolution System

Time Warner supports the creation of a two-tiered dispute resolution system, consisting of (1) voluntary mediation and arbitration, and (2) an online procedure to deal with cybersquatters and clear cases of trademark infringement and/or abuse.

a. Mediation and Arbitration

If voluntarily selected by the parties, mediation and binding arbitration will provide for the efficient and inexpensive resolution of domain name disputes. The Dispute Resolution Policy should require that each Registry provide for online mediation and arbitration.

    1. Dispute Resolution Policy

Time Warner agrees that for cyberspace to continue to develop as an effective commercial market, businesses must have confidence that their trademarks can be protected in cyberspace. To achieve this goal, the Dispute Resolution Policy must guard against clear violations of trademark rights and consumer confusion. The non-profit corporation could establish a single administrative dispute resolution board to enforce the Dispute Resolution Policy. The Policy should defend the domain name system from abuse by those who submit false applications or renewal statements, or otherwise act in bad faith. Without an administrative process to resolve clear trademark violations, cybersquatters will be empowered to extort payments from trademark owners for their own established marks.

In order to avoid trademark dilution, Time Warner proposes that among the remedies provided in the Dispute Resolution Policy, owners of famous trademarks should have the opportunity to clear (i.e., prevent from registration as domain names) these marks in selected gTLDs (specific clearance) or across all gTLDs (general clearance). A specific and general clearance process would avert repeated disputes involving the infringement of the same internationally famous trademarks. Of course, the clearance of marks should be viewed as an extraordinary remedy. Therefore, the standard for obtaining clearance should be stringent and should be based on longstanding and widespread use of an established mark, the rights to which have been recognized by competent authorities. To ensure its effectiveness, clearance of established marks should encompass marks that are identical or that differ only in ways that would clearly mislead Internet users.

Time Warner agrees that the Dispute Resolution Policy should allow for provisional suspension of a domain name registration, during the pendency of a domain name dispute, if a challenger submits its objection within 30 days after publication of the domain name application. However, because this remedy terminates a registrantís use of a domain name prior to a final decision under the Dispute Resolution Policy, a significant standard for obtaining a suspension should be established. Time Warner recommends that the Dispute Resolution Policy require a showing similar to that required to obtain a preliminary injunction; namely, that a challenger demonstrate (1) a strong probability of success on the merits; (2) that irreparable injury is threatened if a suspension is not issued; and (3) that the balance of harm favors the challenger.

  1. NON-PROFIT CORPORATION
  2. The Green Paper envisions a board of directors drawn from the private sector. As a general proposition, Time Warner supports this approach. This is consistent with the overall self-regulatory direction that Time Warner strongly believes better serves the development of the Internet. Public sector representation on the board, whether from the United States, other governments, or international organizations, would not be compatible with this model.

    As proposed in the Green Paper, this board would be comprised predominantly of members of the Internet technical community. However, they may not fully appreciate the legitimate business and trademark concerns raised in the creation of additional gTLDs. In order to give appropriate voice to those involved in and affected by international commerce, members of the business and trademark community should be given equal representation on the governing board.

  3. CONCLUSION

Time Warner thanks the Department for its consideration of these comments and the opportunity to participate in the development of the domain name system.

Respectfully Submitted,

Arthur B. Sackler

Vice President - Law and Public Policy

Time Warner Inc.

###

From: W.Reynolds <reynolds@flashemail.com>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/23/98 3:12pm
Subject: Disturbing Paper

Dear Sir or Madam:

I would like to take this opportunity to express my deepest disappointment
with the "Improvement of Technical Management of Internet Names and
Addresses" Green Paper.

What disturbs me most is the apparent lack of understanding that the
World Wide Web was created in Europe, not in the U.S.. It may be
that the U.S. has funded a beginning Internet, but it has now grown
beyond the borders of the U.S., and has never been under U.S. jurisdiction.

I would request that the U.S. not take control of something it has
no right to and that an international body be created to deal with
this issue on a world-wide basis.

Yours very truly,

Wayne Reynolds

Fast, Permanent, Free Email: http://www.flashemail.com/

###

From: terry peters <petersterry@yahoo.com>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/23/98 2:46pm
Subject: CORE Group

From what I can see, your Green Paper lacks all credibility.

Leave the domain name system to the Council of Registrars (CORE)
group. They have been working on the problem of the end of Network
Solutions contract for years now. There has been much time and energy
invested into CORE, and it satisfies many international guidelines.

Don't ignore it.

_________________________________________________________
DO YOU YAHOO!?
Get your free @yahoo.com address at http://mail.yahoo.com

###

From: Dave Crocker <dcrocker@brandenburg.com>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/23/98 3:01pm
Subject: Green Paper Comments from David H. Crocker

I am attaching comments to the NTIA "Green Paper". The document is in MS
Word 6.0 format. I am also attaching versions in text and html formats.

d/

CC: Becky Burr

 

Comments of

David H. Crocker, Brandenburg Consulting

in regards to the

Department Of Commerce

National Telecommunications and Information Administration

15 CFR Chapter XXIII

[Docket No. 980212036-8036-01]

Improvement of Technical Management

of Internet Names and Addresses

("Green Paper")

22 March 1998

Introduction

It has taken 30 years for the Internet to become an overnight success. Over the last 10 years it has been fulfilling its technical and communications promise, incrementally moving from a centrally-controlled, specialized tool within a restricted community, to a global resource available to all. The subject plan ("Green Paper") considers what is perhaps the final step in this 10 years sequence, final termination of direct United States Government involvement in funding or directing Internet processes.

I welcome the opportunity to comment on the proposal and look forward to its revision in line with its goal of Internet self-governance.

I have been a participant in the Internetís development for most of the its 30 year history, first in the research community and more recently in the commercial sector developing products and service, including founding an Internet startup. In addition to contributions to various Internet technical standards, I had the privilege of serving in a management capacity for the Internet Engineering Task Force (IETF) standards process, including direct oversight of Domain Name Service (DNS) development. Recently I was named by the Internet Assigned Numbers Authority (IANA) to participate in an emergency effort to enhance administration for "generic" domain names, through the International Ad Hoc Committee (IAHC). The IAHC produced the gTLD Memorandum of Understanding (gTLD MoU). My participation was as unfunded volunteer work over the course of one year and was performed out of the typical concern for proper evolution of the Internet. As for any consultant engaged in su ch professional volunteer work, the time spent covered not covered by an employer. In other words, the donation is from the individual and not an employer. Further, I have no past, present or planned financial interests in DNS administration or operation.

Executive Summary

The United States government has made a seminal contribution to global communications, through its initial and continuing funding and direction of technology which produced todayís Internet. Since 1989, the Internet has been moving from being the tool of a limited research and academic community, to a critical piece of global infrastructure essential for commerce. The United States government has been divesting itself of funding and management responsibilities over Internet development and administration. The Green Paper (GP) represents a proposal for completing the last stage of that divestiture, namely independent funding and oversight of Internet administration involving and derived from the Internet Assigned Numbers Authority (IANA). The GP copies many ideas and details from prior work by IANA and under the gTLD Memorandum of Understanding (gTLD MoU). However it makes basic changes to the plans in that prior work, but does not adequately justify them.

Rather than the current approach of fine-grained intervention and direction taken in the GP, the government needs to work as a participant-among-equals in the global Internet communityís process of evolving administration naturally. Rather than arguing that the history of U.S. government funding provides the government with special authority, the GP needs to recognize and honor the true basis for authority of Internet administrative organization, namely the consent of the Internet community.

There is extensive and well-established demand for new "generic" top-level domain names (gTLD). The current limited set of gTLDs imposes a significant hardship on organization seeking to register new names. Unfortunately gTLD administration touches many, disparate and important issues, ranging from Internet technical structure to international trademark law. The gTLD MoU was produced through intense, extensive negotiations among many stakeholders and represents a carefully-crafted set of compromises. The GP essentially ignores that considerable and constructive effort and tries to start afresh, but without conducting true, open and incremental negotiations and was done Ė and continues to be done Ė for the gTLD MoU. The GP provides concessions to a minority of the trademark community and to those seeking excessive commercial profit through exclusive control over gTLDs. In contrast with these special interests, the gTLD MoU represents a balanced set of compromises among formal trademark associations, end-users, and provider organizations. Development and pursuit of additions to the domain name service is a continuing effort, with incremental revision. It is reasonable and appropriate to consider and pursue refinements for the work that is underway. However such refinements must be achieved incrementally and without delaying existing efforts.

Internet development and administration

From research to commerce

The United States Government (USG) has had primary responsibility for the original development of the Internet. Beginning with seminal research in the mid-1960ís, through early experiments with the Defense Advanced Research Projects Agency Arpanet and CATENet, into formal, production operation of the Internet in 1983, continuing into creation of a second, parallel backbone with multiple regional networks, funded by the National Science Foundation. In recent years, this obscure effort has emerged as the embodiment of long-standing dreams for global, personal and commercial data communications.

It is essential to appreciate that the USG did not make its seminal contributions in isolation, even from the earliest days. A number of other countries participated in the development effort. Today expenditures from other governments and from the private sector vastly outweigh total expenditures by the USG, never mind current annual budgeting.

Competition

The Internet is based on "open" standards. These permits companies to compete against each other, while offering the same underlying technology. Further the technology interworks, so that different organizations can buy products from different vendors, yet the organizations can use those products to talk with each other.

Achieving such interworking requires both competition and cooperation. The nature of that requirement is often misunderstood. Competition exists and is beneficial in terms of software, hardware and value-added services, such as Internet service providers.

Central authority

This competition has always been predicated upon a central source for the specification of technology. The Internet Engineering Task Force (IETF) is that central source. The need for single authority over technical specifications has long-acceptance within the Internet community. What is often misunderstood is the equal importance for central authority over global Internet configuration and administration information. The central authority for this work is the Internet Assigned Numbers Authority (IANA), which administers assignments for Internet Protocol addresses, Domain Names, and various other protocol parameters.

Both IANA and the IETF began as creatures of the U.S. government, both in terms of funding and in terms of guidance. Over the last ten years, much of this has changed. As the Internet has grown to become a global resource, so has the operational basis for IANA and the IETF. We are currently undergoing the final stage of this transition, rather than the first stage. There is no legislation which requires conformance to the work of IANA or the IETF. Their success and their authority come only and specifically from the support Ė and therefore the consent Ė of the entire Internet community.

Within the IETF, the basis of this support is known as "rough consensus", with the word "rough" meaning both "approximate" and "difficult". Easy decisions which receive unanimous support are extremely unusual in the IETF. This operational basis for the IETF is well-established and well-accepted. What is generally misunderstood is that it also applies to IANA. We must expect the same reality of "roughness" when seeking consensus for changes to Internet administration. At any time, an alternative consensus could develop to support a different organization. While this would be traumatic for the Internet, there is nothing to prevent it. Nothing, that is, except the continued global support for IANAís work. It is therefore simply inappropriate for any one organization or government to claim special authority over IANAís work. While this may well be an uncomfortable state of affairs for those providing the fundin g, the current intent of the Green Paper needs to consider and accept it.

Separation of efforts

An important lesson in the development of Internet technology has been to divide complicated problems into separate pieces, so that work can be well focussed and deliver useful pieces of work in a short time. A clear and consistent lessson for the Internet and many other large systems is that trying to solve many complicated problems together usually fails, as well as taking a long time. The Green Paper acknowledges the urgency of making some changes immediately. Hower it then makes the mistake of creating too many dependencies on other actions, thereby ensuring that further delays will be experienced.

The Green paper attempts to deal with a number of different issues:

These can be pursued largely independently, rather than be intimately intertwined as currently proposed by the Green Paper. IANA is already pursuing its own evolution. The USG does not need to direct the details of this, although constructive assistance would of course be helpful. The USG should support existing IANA evolution efforts.

The DNS roots are often characterized negatively as being operated by "volunteers". While a technically correct assessment, it misses the essential fact that all of those volunteers are highly experienced professionals and most perform their tasks within the environment of established, major Internet organizations. The informal nature of the arrangements under which they operate may well need to be modified into a structure more comfortable for those with concerns. However it is essential to understand that there is no operational DNS root server problem and that the changes should be viewed as natural evolution rather than problem solving.

Internet Protocol (IP) address assignment has already achieved a reasonably solid, comfortable global operational structure. It, too, needs to evolve naturally rather than to be "repaired". The Green Paper acknowledges the adequacy of existing IP address assignment mechanisms, although it is inconsistent in taking not taking that assessment and applying it equally to work surrounding the DNS.

An extensive effort has been underway for nearly 1 Ĺ years to develop additions to the set of gTLDs. This effort began with the International Ad Hoc Committee, produced the gTLD Memorandum of Understanding (gTLD MoU), and is being implemented through the Policy Oversight Committee (POC) and the Council of Registrars (CORE). This effort was based on a broad base of direct participation, received formal signatory support form more than 200 organizations around the globe and has the active financial investment and operational efforts of 88 organizations. The process for this work was based on well established principals of Internet openness. Further it was instigated under the established authority of IANA and IANA was an enabling signatory for the gTLD MoU. Although the recipient of strong criticism, the ultimate demonstration of its success has been both the presence of strong support and the lack of any other, equally-organized or sustained, competing effort. The only current barrier to the success of this effort is the U.S. governmentís assertion of formal authority over IANA and the root servers. If the US government is seriously interested in Internet self-governance then it needs to refrain from blocking extensive, well-organized and well-supported community-based efforts.

Lastly is the question of NSI. The US government changed NSIís operation from one of cost-plus reimbursement into an unbounded commercial monopoly. It did this without following the usual methods of assigning such a largess. The US government needs to repair this problem, and it should do so in a way which does not leave the users of the Internet subject to unregulated commercial monopoly control. However, the details of dealing with the difficulties created by the US governmentís handling of the NSI contract and NSIís charging, do not need to be tied to any of the other activities. Pursue them separately.

U.S. government, past and present

Initiative and funding

Both the initiative and the sustained direction and funding of Internet development, provided by the USG through ARPA and NSF, represent an extraordinary contribution to human knowledge and human utility. There are few examples in history of such global benefit achieved primarily through a single government.

In addition to the obvious kudos due for the original technical work, it is worth making special mention of a USG initiative which is not generally appreciated: Creation of NSFNet. Prior to the creation of the NSFNet backbone, the Internet had only one backbone (long-haul) network connecting the many user networks. That backbone was funded by ARPA and operated by Bolt Beranek and Newman. The software technology which allowed it to coordinate the backbone was a "routing protocol" which supported only the one backbone. Creation of a second, parallel backbone necessitated enhancing the routing protocol. This requirement moved the formal model of the Internet from a single, central authority to one of full distribution. In other words, creation of NSFNet enabled creation of the fully competitive, open Internet service environment which now exists. I would like to take special note of the vision and tenacity by then-program manager at NSF, Dr. Stephen Wolff, who wa s responsible for this initiative.

Global evolution, global authority

As important as it is to acknowledge history, it is also essential to acknowledge when things change. The Internet is no longer controlled by the United States government or United States organizations. The Internet has become truly global. A policeman in a remote part of Malaysia asked me whether the Internet had been invented in Malaysia. Billboards in Italy advertise local companies, with local business, using ".com" domain names. A retired dentist in Alsace-Lorraine, in France, communicates with long-lost family members in Houston and San Francisco using Internet mail.

It is past time for the United States government to recognize that the child has grown up and has developed its own authority. It has become a creature of the globe, not just the United States, although in truth there has always been a substantial contribution from the Internet community, dating back to the very beginning of the Internet.

This change makes the USG only one player among many. It is essential that the USG not abuse its physical power over certain key participants and organizations, in order to assert authority. If the USG is serious about the desire for Internet self-governance, then it needs to respect community-based efforts that are already underway and it needs to encourage, rather than direct, any necessary additional efforts.

Too much detail, too little time

The Green Paper states broad goals, but it also provides vastly too much detail and it provides it much too late to be useful. Rather it serves to cause delays in the evolution that was already underway. Much of the detail in the GP was copied from existing work by IANA and by the gTLD MoU, although it acknowledges neither. If these efforts are worthy enough to use their work, they are worthy enough to continue on their own. To the extent that specific modifications to their work are deemed appropriate by the USG, then the USG should openly and directly discuss the specific desired changes with the agencies already conducting the work and with the global community. That is quite different from claiming direct initiative and forcing a loss of momentum for existing efforts.

In spite of the controversy surrounding the gTLD MoU, the GP needs to recognize the breadth of effort which created it and the breadth of international support which exists for it. Opposition is vocal but comes only from some very specialized sectors of self-interest. In some cases, those self-interests can be adequately served by making incremental changes to the existing efforts, rather than re-starting the development effort, causing more years of delay.

Contradiction of existing decisions

The Green Paper forcefully asserts tha IANAís authority derives from the USG. Although I believe this position to be fundamentally incorrect, the position of the USG is nonetheless self-contradictory, using itís own claims.

IANA initiated the gTLD MoU effot and IANA provided an enabling signature to the MoU. Further, the USG supplied a participant to the development work of the IAHC which produced the gTLD MoU. A senior staff member from NSF, who was also part of the inter-agency Federal Networking Council (FNC), was a member of the IAHC. Hence there are two lines of USG "authority" which establish USG approval for the existing gTLD MoU work. Hence the Green Paper specification of a new gTLD effort, and one which contains fundamental differences from the principals and details in the gTLD MoU, represents a reversal of existing USG decisions.

Within the GP there is also an inconsistency between the administrative model for IP address model and that from gTLDs. The GP supports the top-level control over IP address assignment being done by a set of not-for-profit agencies. However for gTLDs it supports use of unregulated commercial agencies. The U.S. government needs to recognize the need for top-level administration of Internet administrative infrastructure resources to be done by not-for-profit entities operated in the public interest.

Administrative imperatives

Public oversight

Although the Internet supports a high degree of supplier competition, there some ways in which users are inherently "locked in" and unable to participate in legitimate, free-market processes. The nature of Internet technology makes Internet service providers "locked in" to the group of Internet addresses delegated to them. A provider which must change that group must, in turn, force all its users to change their addresses. This is very detrimental to their retention of those users. Hence, top-level delegation of addresses must be conducted in a fashion which acknowledges the need for stable, fair assignment, done in a public interest style. The GP recognizes this requirement for IP addresses.

The same issues attend assignment of top-level domain names. Although users may have considerable flexibility in their original choice of domain name, they come to have no effective choice after starting to use the name. If a user is dependent upon a single, unregulated, commercial agency for its domain name, then that agency comes to have effectively complete control over the user. The cost of changing a domain name is much worse than the considerable cost of changing a telephone number, due to the fact that domain names are embedded in Web pages. For popular Web pages, it is not uncommon to have more than 100,000 links from other pages. If the owner of such a popular Web page must change their domain name, all of those links become useless. In many cases this will effectively destroy the company owning that popular Web page. Hence it is essential that domain names be administered under the same public interest model being applied to IP addresses.

Benefits of competition

True competition benefits consumers, by improving choice and reducing costs. It also benefits suppliers by ensuring on-going efficiency and alertness. Suppliers that have too much control over their customer relations tend to become complacent, creating long-term vulnerability in their business operation, as market forces change. Unfortunately "competition" can be difficult to achieve in some cases, due to the nature of technological or administrative requirements. In the case of domain names, it is possible to have considerable competition at the time a user first registers a name, but no real competition after that. In other words, users become "locked in" to their names and hence become entirely dependent upon the agency which administers the domain name registration data base (registry). It is possible to separate the sales and support functions among competing registrars, but operation of the registry data base must be conducted by a single agency, for each portion (top-level domain) of the DNS. It is certainly useful to structure DNS administration to encourage competition for initial registrations, but it is essential to recognize that there can be no meaningful competition among registries, at the time of registration renewal; the user is lock-in.

Choosing appropriate financial models

Ideally, competition should take place between unfettered organizations. Further there is long history indicating the benefits of having those organizations operating on a for-profit basis, since it improves the incentives for the employees and owners of the organizations. However, competition does not require a for-profit basis. In the case of top-level domain name administration it is both necessary and appropriate to have registration-time competition be between non-profit organizations. Given the excessive control over users after initial registration, an organization that has a for-profit basis will be inclined to charge excessive fees. There will be no way to prevent such actions and there will be every incentive for them.

Separation of efforts

Internet administration entails many, complicated requirements and processes. It is essential that the requirements be satisfied and the processes be successful. Long experience with the management of Internet technology and project has taught us to find ways to divide such complicated efforts into a series of independent efforts. The Green Paper does not provide an adequate basis for such separation of efforts.

The Green Paper asserts "experiments" with new gTLDs, but provides details which work against effectiveness in those experiments. It also permits irreversible actions, so that the term "experiment" is inappropriate. As with the plan being pursued by POC/CORE, the GP recommends a go-slow approach to the addition of new gTLDs. The set of names planned by POC/CORE was developed through extensive discussion, attending both to technical and end-user issues. The number is small, thereby ensuring no technical problems, but has a variety of names to explore the styles of names which will be popular with users. Inexplicably the GP chose a smaller number, reversing the careful discussions and agreement among the developers of the gTLD MoU. Further, the GP proposes to allocate one name per new data base registry organization.

This has two major problems. First it ensures absolutely no economies of scale in the operation of these new registries. Registry operation requires considerable investment. However the incremental cost of operation by a single registry for multiple names is tiny. If the new registries are to compete effectively against the well-entrenched operation of Network Solutions, they need to have an opportunity to achieve meaningful economies of cost, from the start. This requires assigning multiple names to any new registry.

The second problem is that there is no way to predict the likely popularity of any single, new name. To require a registry to depend entirely on the success of a single name is to ensure that some registries will fail.

The GP permits registries to be organized on a for-profit basis. Extensive discussion in formulating the gTLD MoU achieved a broad "rough" consensus that registries need to operate according to the public interest. As noted above, there is very strong indication that this requires both public oversight and not-for-profit (cost recovery) basis. If the GP is truly interested in go-slow, incremental and experimental changes to the Internet, it must divide the types of experiments and defer the ones which do not need to be conducted now. It is possible to authorize new, non-profit registries, and later consider permitting creation of for-profit registries. However it is not realistic to permit for-profit registries now and later discover that they are not beneficial for Internet users and decide to terminate them. For that matter, it will be possible to permit not-for-profit registries and later decide to terminate them, if necessary. The U.S. governm ent needs to take proper cognizance of the types of steps which are incremental and reversible and those that are not.

Conclusion

The Green Paper represents an important step in the U.S. governmentís final divestiture of direct responsibilities for Internet funding and administration. The paperís proposal need to be modified to properly recognize existing, community-based efforts at self-governance, rather than having the USG directly provide fine-grained detail and direction. The Internet has become a global resource and it is no longer appropriate for the USG to claim ownership or control of Internet administration. Although the USG has considerable power over the current administrators of the Internet, use of that power is entirely inappropriate. The international community has already recognized the US-centric views in the Green Paper and considerable damage will be done if those views are allowed to persist. The most simple and most effective path for the USG to follow is to acknowledge that existing evolutionary efforts have adequate, international support, rather than to have the US G take a more active and controlling role. To the extent that existing efforts need refinement, the USG should purse changes as incremental, rather than starting entirely new projects as if no progress had been made by the existing, community efforts to evolve Internet self-governance.

Contact information

David H. Crocker

Principal

Brandenburg Consulting

675 Spruce Dr.

Sunnyvale, CA 94086 USA

TEL: +1 408 246 8253

FAX: +1 408 249 6205

EMAIL: dcrocker@brandenburg.com

WEB: www.brandenburg.com

###

From: Amy Page <amy@aipla.org>
To: "'dns@ntia.doc.gov'" <dns@ntia.doc.gov>
Date: 3/23/98 3:06pm
Subject: Fed Reg Notice Response on Internet Name Management

March 23, 1998

Ms. Karen Rose
Office of International Affairs
National Telecommunications and
Information Administration
Room 4701
U. S. Department of Commerce
14th Street & Constitution Avenue, N.W.
Washington, D. C. 20230

Dear Ms. Rose:

Attached are the comments of the American Intellectual Property Law Association to the proposed Rule on "Improvement of Technical Management of Internet Names and Addresses," published February 20, 1997. We appreciate the opportunity to provide these comments and look forward to working with the Administration as it develops its policies in this critically-important area.

The attachment is in Wordperfect 7.0. Additionally, we are sending three copies plus a diskette by courier to your offices.

Sincerely,

Gary L. Griswold
President

CC: Mike <Windows/Administra/Mike@aipla.org>

[View attached message]

###

From: Patrick Greenwell <patrick@namesecure.com>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/23/98 3:22pm
Subject: Response to the "Green Paper" proposal

Founded in 1995, with over 18,000 domains under contract to clients in more
than 150 different countries, NameSecure has been following the issues of
additional TLD name space, as well as Internet governance in this regard
with great interest.

Being involved in the registration of domains as a critical component of
our business, performing what the Green Paper would define as registrar
functions for our clients, it is with the interest of those clients, our
company, and the countless millions of Internet users throughout the
world, that we make the following comments and suggestions.

I. CONTROL OF .COM .NET AND .ORG SHOULD BE RELINQUISHED BY NSI

NSI was granted both the registry and registrar function for .com, .net., and
.org as part of its cooperative agreement with NSF. The contract for
these services is nearing its end. While NSI is to be commended for
handling these services in a time of explosive growth of the Internet, it
is entirely inappropriate to allow NSI "ownership" of .com, .net and .org
in perpetuity as is proposed under the Green Paper.

Under the Green Paper's proposal, new registries would be allowed management
of but a single TLD. However NSI is excepted from this and under the current
draft would enjoy management of three TLD's, which is a distinct and unfair
advantage over other new registries. Further, the domain names registered
under .com, .net, .org are a recurring revenue stream, a legacy of the virtual
monopoly on domain name registration that NSI has enjoyed for the past several
years. It is our belief that NSI has no inherent right to either the current
.com, .net, .org registries or the recurring revenue stream they provide.

Therefore, we propose that NSI relinquish control of the current registry
it operates at the end of the contract under its cooperative agreement
with NSF. Furthermore, one of the two actions outlined below should be taken:

A.
1) That this single registry be split into three separate registries,
bringing it in line with the concept of a single TLD allowed
per entity as new registries would be allowed under the current
proposal.

2) Each of these registries be placed for competitive bid, with
the proceeds of such a bid being used as seed money for the
new non-profit oversight corporation proposed under the Green
Paper.

B. The operation of the current .com, .net, and .org would be
performed as a function of the new oversight organization, with
proceeds going to the funding of the oversight organization.

Either solution would have the effect of:

1) Putting a truly fair and equitable end to the monopoly NSI has
enjoyed for far too long.

2) Allow the new oversight organization pay for itself, obviating
the need to receive funding from registries, a cost which
would ultimately be borne by the consumer.

3) Introduces the very real possibility that the revenues generated
under this proposal will far exceed the operational expenses
requirement of this new organization, and could help fund future
development of Internet technologies in the form of grants. As
this new organization would be a private organization representing
the interests of Internet users everywhere, there would be no
"taint" of U.S. government involvement in disbursement of these
grants.

Allowing NSI to enjoy an unfair advantage over other registries in this
regard will, without question, lead to time-consuming, expensive litigation,
and has the potential of ultimately invalidating the entire Green Paper.

NSF has made the mistake of giving away a very valuable source of revenue for
a number of years. The Green Paper would do this again, however the effects
would be permanent. It is of paramount importance to the success of the ideas
embodied within the Green Paper that the same mistake not be made twice.

II. THERE IS NO PROTECTION AGAINST "PRICE GOUGING"

The paper states:

" We concede that switching costs and lock-in could produce the
scenario described above. On the other hand, we believe that market
mechanisms may well discourage this type of behavior. On balance, we
believe that consumers will benefit from competition among market
oriented registries, and we thus support limited experimentation with
competing registries during the transition to private sector
administration of the domain name system."

If, on balance, it is decided that a single entity representing a single
company or corporation will be allowed to exclusively control pricing
within a given TLD, appropriate safeguards need to be put in to place to
prevent price gouging. Under the current proposal, no such protections are
offered and will most assuredly prove to the detriment of the domain
name registrant.

Companies have begun to "brand" their domain name(s), spending into the
millions of dollars on creating an association between that company and their
domain name. ISPs (Internet Service Providers) and IPPs (Internet Presence
Providers) become tied to domain names as they increase in membership and size.
A domain name begins to have an intrinsic value for these parties as
this occurs. Consider for a moment the case of AOL, with millions of users
which operates under the domain name "aol.com." While one might hope that
NSI wouldn't arbitrarily raise the price of .com domain names to $1,000,000,
if they were to, AOL would be forced to pay a ransom for their domain
name due to the prohibitive costs involved in moving its millions of
customers to a different domain name, changing their software and marketing,
etc. While this example is a bit extreme and unlikely to occur, it
does serve to demonstrate that the potential for abuse by registries is too
great not to provide some basic protection to the consumer. Whether increases
allowed per year may be a specific percentage, or a specific dollar amount,
the consumer must be shielded in some fashion from potential predatory pricing
practices of a registry.

If it is found to be inappropriate to attempt to regulate a registry in this
fashion, then it is my belief that registries should indeed be non-profit
corporations operating on a cost-recovery basis with appropriate oversight by
the newly-founded oversight organization proposed in the Green Paper to
ensure fiscal responsibility in its operations.

III. THE PROPOSED DISPUTE POLICY PLACES AN UNDUE BURDEN ON INDIVIDUALS

AND SMALL BUSINESS OWNERS

The Green Paper states:

" It is important to keep in mind that trademark/domain name disputes
arise very rarely on the Internet today. NSI, for example, has
registered millions of domain names, only a tiny fraction of which have
been challenged by a trademark owner. But where a trademark is
unlawfully used as a domain name, consumers may be misled about the
source of the product or service offered on the Internet, and trademark
owners may not be able to protect their rights without very expensive
litigation."

Having personally been a victim of NSI's flawed Domain Dispute policy, and
having spoken to other parties that have suffered under these policies, I feel
that I can unequivocally state that the converse is more often the case.

In my case, a trademark owner simply mailed NSI a proof of their trademark,
and stated that they felt that there was an infringement of their mark.
However, they never stated how I was infringing on their mark, beyond my
ownership of that domain name, nor did they provide any proof to substantiate
such a claim, nor could they have as I had only used the domain for personal
use for email correspondence. Lacking the ability to afford an attorney
however, NSI simply gave the domain to the trademark holder because I could
not offer legal challenge. This is not a fair and balanced system.

Currently in the U.S., there is no need for a business to apply for a
trade mark or service mark in order to conduct business. Yet in effect, that
is what the current system requires, if a company lacking attorney fees wishes
to protect themselves from having their domain name taken from them by
policies instituted by a company (NSI) that has no authorization other than
that which they have granted themselves in making such decisions. Furthermore,
these policies place such strictures on the individual registering a domain
name for personal use, that in no way infringes on a trade mark holders
rights. Many of the contested domain names in question are words that can be
found in any dictionary. As a timely example of this, please visit:

http://www.pokey.org and
http://www.pokey.com

I found the word "pokey" contained within several dictionaries, including
Webster's and Funk & Wagnalls. These domain names were registered by completely
separate entities for entirely different purposes, one personal, one
commercial and yet, by even a cursory glance it is evident to a lay person
such as myself that neither are infringing upon the rights of Prema Toys, the
organization that holds the trademark on "Gumby" and "Pokey" the animated
characters and their likenesses. Yet both the owners of pokey.org and
pokey.com are forced to defend themselves against being stripped of their
respective domain names under arbitrary, inappropriate, and as time has
shown, actionable NSI polices, due to the mere allegations of trademark
infringement that no credible court in the U.S. would find substantiative
evidence to support.

A trademark in the U.S. and in many other countries is offered to protect the
rights of the trademark holder to conduct business within a given industry.
It does not grant an exclusive right to claim exclusive use of that trade
mark in any and all industries. As this is the case, any proposal to "clear"
a name within a number of registries far oversteps the bounds of
reasonableness in striving to protect the rights of a trade mark owner. Doing
so would create a situation whereby an owner of a trade mark would enjoy
exclusive rights to a domain name in any and all industries, and is very
much inconsistent with protections offered under U.S. trademark law. Any
attempt to do so is anti-consumer, as well as anti-small business.

The complexities of trade mark disputes and ownership rights increase
exponentially when we begin to examine these issues in their proper context
which, given the constituency of the Internet, is global in scope.

The mere registration of a domain name that is the same or substantially
similar to a registered trade mark is not in itself evidence of a trade mark
violation. With regards to registries in the U.S. at least, it also not
incumbent upon the registry to determine if a possible trade mark violation
exists, nor to suspend or turn over ownership of the domain name as a result
of that determination. The above assertions are borne out in U.S. case law.
In the opinion on Lockheed Martin Corp. v. Network Solutions, Inc., Judge
Pregerson stated the following:

" As to the knowledge basis, the Court concludes that NSI's limited role as a
registrar of domain names coupled with the inherent uncertainty in defining
the scope of intellectual property rights in a trademark militates against
finding that NSI knew or had reason to know of potentially infringing uses by
others. Furthermore,contributory infringement doctrine does not impose upon
NSI an affirmative duty to seek out potentially infringing uses of domain
names by registrants."

It is with all of the above in mind that the following suggestions are made:

1) Registries should have absolutely no domain name dispute policy.

Registries should make no decision regarding the effect of a trade
mark upon the registration and/or ownership of a domain name. Experience
has demonstrated that past and current policies do not adequately represent
all parties equally, have been formulated to give undue and unwarranted
privilege to trade mark owners, and have been applied in a sometimes
arbitrary fashion behind closed doors, without the possibility of
independent review.

It is our belief that the formulation of such policies are not within their
purview, nor with respect to at least the U.S. is it required in the
performance of their duties as a registry. It has repeatedly been shown
that existing policies were instituted solely for the protection of NSI.
Now that U.S. case law has shown these policies to be unnecessary for such
protection, such policies should be abolished.

2) Registries should follow the dispute policy outlined in RFC 1591.

Prior to NSI's involvement in domain name registration, and for some
time afterward, domain disputes were handled using an exceedingly
simple but effective policy outlined in RFC 1591 which is referred to as
the "first come, first serve" policy. The meaning of this is very clear:
the first individual or organization to apply for a domain name is granted
that domain name. This was an extremely popular policy within the Internet
community at large, and most importantly, worked. It did not place the
registry in the position of acting as arbiter for such disputes, making
what are in fact legal decisions. Further, RFC 1591 states the following
with regards to domain disputes and the registry's possible role as arbiter:

"4. Rights to Names

1) Names and Trademarks

In case of a dispute between domain name registrants as to the
rights to a particular name, the registration authority shall have
no role or responsibility other than to provide the contact
information to both parties.

The registration of a domain name does not have any Trademark
status. It is up to the requestor to be sure he is not violating
anyone else's Trademark."

The above policies were simple, efficient, and did not place the
registry in a precarious legal position. It is only due to the misplaced
attempts by NSI to protect itself from litigation that we find ourselves
discussing the issue of the unnecessary promulgation of domain dispute
policies by registries.

3) Registries should be bound by the decisions of courts within
their own country.

It is our belief that of the suggestions made within the Green Paper
regarding jurisdiction in disputes, that the most appropriate decision
is to place jurisdiction within the registry's primary country of business.

Two other suggestion were offered, which we feel have substantial
shortcomings.

The first, to place jurisdiction where the registry database is maintained
does not take into consideration that given the global nature of the
Internet and the need for robustness, a registry's database may in fact be
maintained in several countries, creating a very difficult question
of where jurisdiction lies.

The second, to place jurisdiction in the country where the "A" root
server is located, is highly inappropriate. As there is only one
widely recognized "A" root server at this time, jurisdiction over
all domain disputes, no matter their country of origin or the country
that the registry conducts business in, would reside within a single
country. This would have the deleterious effect of subjecting the
population of the entire world to the laws of a single country in
the resolution of domain name disputes.

By placing jurisdiction in disputes within the registry's primary country
of business, there is no question of jurisdiction. Also, if a consumer
has sufficient concerns that their rights will not be respected by a
certain country or countries, they can choose a domain name registry in a
country where they feel their rights will be appropriately protected.

IV. BUSINESS, MEETINGS, AND DECISION MAKING SHOULD BE CONDUCTED IN A
COMPLETELY OPEN FASHION

One of my biggest criticisms of the leading alternate plan for the growth
of the TLD system has been that, while claiming to operate in a truly open
and representative fashion, the gTLD-MOU plan has done nothing of the sort.
Meetings and important decision have been made behind closed doors,
meeting minutes and email mailing lists where decisions are being made
are unavailable for public review, and no evidence of true consensus
in the formulation of policy can be provided or demonstrated.

It is with the failure of such an alternate plan to operate in a
truly open fashion in mind that I offer the opinion that any business,
meetings and decision making by the new oversight organization should be
conducted in open and complete view of the public. This should include and
not be limited to meetings, policy documents, as well as the availability of
meeting minutes in electronic format via email or web page. In addition,
the contents of any email mailing list that the new oversight creates to
perform its functions should be archived and that archive should be
available via a web page in a searchable format, as with a search engine.

The new oversight organization will be charged with issues that are
clearly a matter of public trust. It is time for us to now go beyond
what is merely required by current disclosure laws in order to create
an environment where the public has easy and unfettered access to
information which ultimately affects them. For too long has the public
been subject to difficulties in obtaining information regarding
decisions made that directly involve them. The time to end such difficulty
is now, and by adoption of such ease of accessibility, the new oversight
organization could set a shining example for other organizations to
follow.

V. THE PROPOSED OVERSIGHT ORGANIZATION DOES NOT ADEQUATELY REFLECT THE
INTERESTS OF ALL CONCERNED PARTIES

The Green Paper suggests the new oversight organization consist of the
following:

3 Members representing regional registries (currently ARIN,APNIC, and RIPE)
2 Members representing the IAB (Internet Architecture Board)
2 Members representing domain registries and registrars
7 Members representing Internet users

We would make the following corrections:

1) Currently, there is no inclusion on the board supporting the interests
of the thousand upon thousands of ISPs and IPPs in existence. Both of
these groups have a significant stake in these issues as decisions
regarding number allocations and policy regarding TLD issues can directly
and substantially affect their business and policies. Therefore it
would seem appropriate to add 2 Members from within the ISP/IPP industry.

2) The Green Paper has gone to great lengths to separate the concept
and responsibilities of the registry and the registrar. However
in the above issue of representation, the Green Paper suggests
an organization be created that represents the interest of
registries and registrars. Just as responsibilities are different
between a registry and a registrar, so do we feel interests would be.
For this reason, two organizations should be created, one representing
the interest of registries, and one representing the interests of
registrars. From each of these organizations, two members should be
selected.

3) In order to offset the addition of four members within the Internet
industry, we suggest that 4 additional members be added to the
group representing the interest of Internet users at large. This
will ensure the proper balance between the interests of the those
involved within the technical community, and the interests of those
within the Internet community.

VI. CERTAIN QUALIFICATIONS AS A REGISTRAR/REGISTRY WOULD PROVE COST PROHIBITIVE

While we are an agreement with the majority of qualifications to be
a registrar/registry, as they follow common sense standards as to network
design and operation, we find the requirement of 24 hour guards to be
costly and unwarranted. While it is certainly appropriate to require
24 hour security via an alarm company, staffing of 24 hour guards
in two independent locations could prove cost prohibitive to the
many small businesses that may wish to provide registrar or registry
functions and serve as a barrier to market, lessening the options in
registrars/registries a consumer would otherwise have.

Given that in both the case of the registrar and the registry, both would
be required to have two physically independent locations, we feel that
while desirable, there should be no requirement for 24 hour guards.

VII. CONCLUSION

The Internet has experienced explosive growth over the past several years.
It has grown from what was once a U.S. Defense Agency experiment, to an
entity for primarily academic purposes, to a network spanning the globe
whose membership and interest include business, academia, and the countless
millions of people that simply wishing to communicate and express ideas
with one another.

It is with the interests of all these currently involved parties that we
should move forward in these matters. While speed is of the essence it is
imperative we not rush headlong into any proposal which does not
establish a truly open framework and which adequately represents all
parties, treating them in a fair and equitable manner.

With a few noticeable exceptions, the Green Paper has the potential
to offer the truly open, representative, and balanced solutions to many
of the difficult questions surrounding the issue of Internet governance
and the removal of U.S. government involvement in these matters. With
appropriate alteration, it will be such a proposal.

The decisions made now have the potential of charting the course of the
Internet and deciding the issue of Internet governance for the foreseeable
future. It is important we choose fairly, carefully, and wisely.

I appreciate the opportunity to present my views and the views of
NameSecure in this forum and welcome the opportunity to discuss these
issues further with interested parties.

Sincerely, on behalf of NameSecure,

Patrick Greenwell

###

From: William Allen Simpson <wsimpson@greendragon.com>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/23/98 3:31pm
Subject: Technical Management of Internet Domain Names and Addresses

Submitted by:
William Allen Simpson
P.O.Box 6205
East Lansing, Michigan 48826

There are numerous errors in the details of the proposed rule. Rather than a
wordy critique of the more egregious specifics, it is expedient to offer a
comprehensive revision of the proposed rule. Discussion sections are included
with a brief explanation of the changes.

-----------------------------------------------------------------------

SUMMARY: This document sets forth a transition plan for the termination of
Federal government funding of portions of the Internet Domain Name System (DNS).
Specifically, it describes the process by which the Federal government will
transfer registry operations of specific domains to various international
consortia.

[discussion] The Federal government is not directly involved in technical
management of the DNS. It has funded registry operations. There is no
statutory authority cited for Federal creation of corporations.

...

I. Introduction

Domain names are the familiar and easy-to-remember names for Internet
computers (such as "www.ecommerce.gov"). They map to unique Internet Protocol
(IP) numbers (for example, 98.37.241.30) that serve as network node identifiers
on the Internet. The domain name system (DNS) translates Internet names into the
IP numbers needed for routing of datagrams across the networks.

[discussion] Moved here from below. Fixed technical wording. Minor
improvements to language.

In 1992, the U.S. Congress gave the National Science Foundation statutory
authority to commercialize the NSFnet. As a legacy, major components of the
domain name system are still performed by or subject to agreements with agencies
of the U.S. government.

[discussion] Moved here from below. Need legal and cooperative agreement
citations.

On July 1, 1997, the President directed the Secretary of Commerce to
privatize, increase competition in, and promote international participation in
the domain name system. On July 2, 1997, the Department of Commerce issued a
Request for Comments (RFC) on DNS administration (62 FR 35896). This proposed
rule, shaped by over 430 comments received in response to the RFC, provides
notice and seeks public comment on a proposal to transfer registry operations of
specific domains to various international consortia.

[discussion] The Federal government does not directly exercise control of
Internet domain names, except the limited .gov and .mil top level domains.
There is no statutory authority cited for Federal creation of corporations.

II. Background

Today's Internet is an outgrowth of U.S. government investments in
packet-switching technology and communications networks carried out under
agreements of the Defense Advanced Research Projects Agency (DARPA), the
National Science Foundation (NSF) and other U.S. research agencies, with regional
educational consortia. The government encouraged deployment of cooperative
networking technologies through work at NSF, which established the NSFnet as a
U.S. network for research and education. The NSFnet fostered a wide range of
applications, and separate parallel educational and commercial networks were
established internationally, which formed the basis for today's Internet.

[discussion] While true by omission, note that the above forgot the failed US
ISO/OSI initiative, on which far more was spent than the NSFnet. Much of the
Internet success is due to regional state involvement (Michigan, Merit), and
international networks, that predate the NSFnet.

A. Assignment of Numeric Addresses to Internet Users

Every Internet computer has a unique IP number. The Internet Assigned Numbers
Authority (IANA), headed by Dr. Jon Postel of the Information Sciences Institute
(ISI) at the University of Southern California, under funding of DARPA,
coordinates this system by allocating blocks of numerical addresses to regional
IP registries (ARIN in North America, RIPE in Europe, and APNIC in the
Asia/Pacific region). In turn, larger Internet service providers apply to the
regional IP registries for blocks of IP addresses. The recipients of those
address blocks then distribute addresses to smaller Internet service providers
and to end users.

[discussion] Fixed title. Reorganized to eliminate the impression that RIPE
and APNIC were DARPA funded. Fixed technical wording.

B. Registering Names for Internet Users

The domain name space is constructed as a hierarchy. It is divided into
top-level domains (TLDs), with each TLD then divided into second- level domains
(SLDs), and so on. More than 200 national, or country- code, TLDs (ccTLDs) are
administered by their corresponding governments or by private entities with the
appropriate national government's acquiescence. A small set of generic top-level
domains (gTLDs) do not carry any national identifier, but denote the intended
users of that portion of the domain space. For example, .edu was established
for educational institutions, .com was established for commercial enterprises,
.org for not-for-profit organizations, and .net for network services. The
registration of these gTLDs are performed by Network Solutions, Inc. (NSI), a
Virginia-based company, under a five-year cooperative agreement with NSF. This
agreement includes an optional ramp-down period that expires on September 30,
1998.

[discussion] Fixed title. Added .edu, affected by the cooperative agreement.
Fixed technical wording.

C. Operation of the Root Server System

Universal connectivity on the Internet cannot be guaranteed without a
consistent set of unique domain names. The root server system contains
authoritative databases listing the TLDs so that the destination of an Internet
message can be determined. IANA, under funding of NSF, maintains the
authoritative root database.

[discussion] Fixed technical wording and missing details.

Currently, NSI maintains the registry of several gTLDs, and replicates
changes to the root servers on a daily basis. Different organizations, including
NSI, operate the root servers. In total, the U.S. government plays a direct or
indirect role in the operation of about half of the world's root servers.

[discussion] Fixed details. DNS replication is not currently used, instead
FTP is the primary update mechanism. There is no significance to the letter
"A", which is the result of a very recent reorganization, and can easily be
changed.

D. Protocol Parameter Assignment

The Internet protocol suite, as defined by the Internet Engineering Task
Force (IETF), contains many technical parameters, including protocol numbers,
port numbers, autonomous system numbers, management information base object
identifiers, and others. The common use of these protocols by the Internet
community requires that the particular values used in these fields be assigned
uniquely. IANA, under funding of DARPA, makes these assignments and maintains a
registry of the assigned values.

[discussion] Fixed title. Added funding details.

III. The Need For Change

In addition to a U.S.-based research vehicle, the Internet is rapidly
becoming an international medium for commerce and communication. The current
means of organizing domain name registration need to evolve as well. The
pressures for change are coming from many different quarters:

[discussion] Fixed minor wording. Restrict to domain issues, not all
"technical functions".

<bullet> There is widespread dissatisfaction about the absence of
competition in domain name registration.
<bullet> Mechanisms for resolving conflict between trademark
holders and domain name holders are expensive and cumbersome.
<bullet> Without changes, a proliferation of lawsuits could lead to
chaos as tribunals around the world apply the antitrust law and
intellectual property law of their jurisdictions to the Internet.
<bullet> Many commercial interests, staking their future on the
successful growth of the Internet, are calling for a more formal and
robust management structure.
<bullet> An increasing percentage of Internet users reside outside
of the U.S., and those stakeholders want a larger voice in Internet
coordination.
<bullet> As Internet names increasingly have commercial value, the
decision to add new top-level domains cannot continue to be made on an
ad hoc basis by entities or individuals that are not formally
accountable to the Internet community.
<bullet> As the Internet becomes commercial, it becomes
inappropriate for U.S. research agencies (NSF and DARPA) to participate
in and fund these functions.

[no change to bullets]

IV. The Future Role of the U.S. Government in the DNS

On July 1, 1997, as part of the Clinton Administration's Framework
for Global Electronic Commerce, the President directed the Secretary of
Commerce to privatize, increase competition in, and promote
international participation in the domain name system.
Accordingly, on July 2, 1997, the Department of Commerce issued a
Request for Comments (RFC) on DNS administration, on behalf of an
inter-agency working group previously formed to explore the appropriate
future role of the U.S. government in the DNS. The RFC solicited public
input on issues relating to the overall framework of the DNS system,
the creation of new top-level domains, policies for registrars, and
trademark issues. During the comment period, over 430 comments were
received, amounting to some 1500 pages.<SUP>1</SUP>
---------------------------------------------------------------------------

\1\ The RFC and comments received are available on the Internet
at the following address: <http://www.ntia.doc.gov>.
---------------------------------------------------------------------------

This discussion draft, shaped by the public input described above,
provides notice and seeks public comment on a proposal to improve the
technical management of Internet names and addresses. It does not
propose a monolithic structure for Internet governance. We doubt that
the Internet should be governed by one plan or one body or even by a
series of plans and bodies. Rather, we seek to create mechanisms to
solve a few, primarily technical (albeit critical) questions about
administration of Internet names and numbers.
We expect that this proposal will likely spark a lively debate,
requiring thoughtful analysis, and appropriate revisions. Nonetheless,
we are hopeful that reasonable consensus can be found and that, after
appropriate modifications, implementation can begin in April, 1998.
Recognizing that no solution will win universal support, the U.S.
government seeks as much consensus as possible before acting.

[presumably, the above section will be deleted or substantially revised in
the final rule]

V. Principles for Transition

Over the past 4 years, substantial differences have been revealed among
Internet stakeholders on how the domain name system should evolve. Since the
Internet is changing so rapidly, no one entity or individual can claim to know
what is best for the Internet. Nevertheless, shared principles have emerged from
discussions with Internet stakeholders.

[discussion] Fixed title. Irrelevant personal commentary removed.

A. Stability

The U.S. government should end its funding of the Internet number and domain
name systems in a responsible manner. Above all else, this should not move so
quickly, nor depart so radically from the existing structures, that the
functioning of the Internet is disrupted. The transition should not disrupt
current operations, nor create competing root systems.

[discussion] Inaccurate and personal commentary removed. The current
"technical management" has shown itself to viable. Fixed technical wording.

B. Competition

The Internet succeeds in great measure because it is a decentralized system
that encourages innovation and maximizes individual freedom. Where possible,
market mechanisms that support competition and consumer choice should drive the
transition because they will promote innovation, preserve diversity, and enhance
user choice and satisfaction.

[discussion] Fixed minor wording. Restrict to transition, not all "technical
management", which was inconsistent with the next section.

C. Bottom-Up Coordination

Certain technical management functions require coordination. In
these cases, responsible, private-sector action is preferable to
government control. A private coordinating process is likely to be more
flexible than government and to move rapidly enough to meet the
changing needs of the Internet and of Internet users. The private
process should, as far as possible, reflect the bottom-up governance
that has characterized development of the Internet to date.

[discussion] Fixed title. No other changes.

D. Diverse Representation

Technical management of the Internet should reflect the diversity of its
users and their needs, and include international input in decision making.

[discussion] Fixed title. Removed references to future acts, as this is
already in place. Motherhood and apple pie.

VI. The Proposal

In keeping with these principles, the name and number functions are divided
into two groups: those that should be coordinated and those that can be moved to
a competitive system. Finally, a transition plan ensures that these changes occur
in an orderly fashion that preserves the stability of the Internet.

[discussion] Title moved to correct position in text. Reorganized, with
personal pronouns removed.

A. The Coordinated Functions

Management of numeric addresses is best done on a coordinated basis. As
technology evolves, changes may be needed in the number allocation system. These
changes should also be undertaken in a coordinated fashion.

[discussion] Fixed language.

Similarly, coordination of the root server network is necessary for the whole
system to work smoothly. While day-to-day operational tasks, such as the actual
operation and maintenance of the Internet root servers, are the responsibility of
the various root server operators, overall policy guidance and control of the
TLDs and the Internet root server system should be vested in a single
organization.

[discussion] Fixed technical wording.

Finally, coordinated maintenance and dissemination of the protocol
parameters for Internet will best preserve the stability and
interconnectivity of the Internet.

[discussion] Fixed technical wording. Motherhood and apple pie.

The current Internet governance bodies manage these coordinated functions in
a stable and open institutional framework, and operates for the benefit of the
Internet as a whole. The U.S. government will cease funding these activities as
the current funding agreements expire, and no later than September 30, 2000.

1. The Internet Engineering Task Force (IETF) coordinates technical changes
in management of Internet addresses, as approved by the Internet Engineering
Steering Group (IESG), and appeals are taken to the Internet Architecture Board
(IAB) and Internet Society Board. IANA operates with limited discretion in this
area, and serves the regional address registries. This portion of IANA activity
will be funded by a monthly feee assessed the regional address registries.

2. IANA has been designated by the IAB to oversee the operation of an
authoritative root server system. The root servers are owned and operated by
volunteer organizations. There have always been more than enough volunteers to
serve the Internet, and thus IANA has minimal discretion in choosing among the
volunteer candidates based on topological distribution, multiple connections, and
demonstrated technical expertise. There have been no difficulties in
coordination of the root servers. This portion of IANA activity will be funded
by a monthly fee assessed the country code registrars, the gTLD Council of
Registrars (CORE) and other TLD registrars. The U.S. government will continue to
pay its contribution for its .us, .gov, and .mil TLDs.

3. The gTLD Policy Oversight Committee (a Delaware corporation) has authority
for determining the circumstances under which new generic top-level domains are
added to the root system. This organization is composed of members appointed by
the International Treaty Organization, the Internet Society, the IAB, IANA, the
internationally chartered gTLD Council of Registrars (CORE), and the gTLD Policy
Advisory Body. No U.S. government funding is currently involved.

4. The IETF coordinates the development of other technical protocol
parameters as needed to maintain universal connectivity on the Internet, as
approved by the IESG, and appeals are taken to the IAB and Internet Society
Board. IANA operates with limited discretion in this area. This portion of IANA
activity will be funded by the Internet Society.

[discussion] All references to a new corporation removed, as there is no
supporting statutory authority for the US government to establish such a
corporation. Personal pronouns removed. Funding specified.
1. IANA does not set policy with regard to numeric addresses.
2. The current system is described.
3. The US government has never had a role in such establishment, and thus has
no such recognized authority to delegate to any entity.
4. The US government has not had a role in over 12 years, and thus has no
remaining authority to delegate to any entity.

At some future time, the Internet Architecture Board (IAB) may designate some
other organization than USC-ISI to run the IANA, or may split the
responsibilities among several organizations. It is recommended that one or
more new not-for-profit corporations be established as needed.

[discussion] Replaces the paragraphs establishing a US sponsored corporation.

It is probably impossible to establish and maintain a perfectly
representative board for any organization. The Internet community is already
extraordinarily diverse and likely to become more so over time. Nonetheless, each
organization and its board must derive legitimacy from the participation of key
stakeholders. Since an organization will be concerned mainly with numbers and
servers, its board should represent membership organizations in each of these
areas, as well as the direct interests of Internet users.

[discussion] Removed names and protocol references, since these already have
existing incorporated organizations. Removed additional speculative
paragraphs on board membership, and creating new user organizations.

The organization's processes should be fair, open and pro-
competitive, protecting against capture by a narrow group of
stakeholders. Its decision-making processes should be sound and
transparent; the bases for its decisions should be recorded and made
publicly available. Super-majority or even consensus requirements may
be useful to protect against capture by a self-interested faction. The
organization's charter should provide a mechanism whereby its
governing body will evolve to reflect changes in the constituency of
Internet stakeholders. The organization should establish an open
process for the presentation of petitions to expand board
representation.

[discussion] Replaced "new corporation" with "organization". Deleted
paragraph about "standard-setting body" since the IANA exercises limited
discretion, and the IETF is already a standard setting body.

B. The Competitive Functions

The system for registering second-level domain names and the management of
the TLD registries should become competitive and market-driven. In this
connection, there is a distinction between registries and registrars.

1. A ``registry'' is responsible for maintaining a TLD's zone files, which
contain the name of each SLD in that TLD and each SLD's corresponding name
servers. For practical purposes, a given TLD can have no more than one registry,
although the master database can be distributed and cooperatively updated.

2. A ``registrar'' is an authorized entity between domain-name subscribers
and a registry, providing registration and value-added services. It cooperatively
updates the registry zone file information and other data (including contact
information) for each of its customers.

[discussion] Removed personal pronouns. Numbered paragraphs. Fixed
technical wording.

Currently, NSI acts as both the exclusive registry and as the exclusive
registrar for .com, .net, .org, and .edu.

Both registry and registrar functions could be operated on a competitive
basis. Other companies could manage registries with different TLDs such as .vend
or .store. Registrars could provide the service of obtaining domain names for
customers in any gTLD. Companies that design Web sites for customers might, for
example, provide registration as an adjunct to other services. Other companies
may perform this function as a stand- alone business.

There appears to be strong consensus that, at least at this time, domain name
registration -- the registrar function -- should be competitive. There is
disagreement, however, over the wisdom and practicality of promoting competition
at the registry level.

[discussion] Separated paragraphs. Removed redundant text. Added practicality.

Some have made a strong case for establishing a market-driven
registry system. Competition among registries would allow registrants
to choose among TLDs rather than face a single option. Competing TLDs
would seek to heighten their efficiency, lower their prices, and
provide additional value-added services. Investments in registries
could be recouped through branding and marketing. The efficiency,
convenience, and service levels associated with the assignment of names
could ultimately differ from one TLD registry to another. Without these
types of market pressures, they argue, registries will have very little
incentive to innovate.
Others feel strongly, however, that if multiple registries are to
exist, they should be undertaken on a not-for-profit basis. They argue
that lack of portability among registries (that is, the fact that users
cannot change registries without adjusting at least part of their
domain name string) could create lock-in problems and harm consumers.
For example, a registry could induce users to register in a top-level
domain by charging very low prices initially and then raise prices
dramatically, knowing that name holders will be reluctant to risk
established business by moving to a different top-level domain.
We concede that switching costs and lock-in could produce the
scenario described above. On the other hand, we believe that market
mechanisms may well discourage this type of behavior. On balance, we
believe that consumers will benefit from competition among market
oriented registries, and we thus support limited experimentation with
competing registries during the transition to private sector
funding of the domain name system.

[discussion] need to remove personal pronouns. specified funding.

C. The Creation of New gTLDs

Internet stakeholders disagree about who should decide when a new
top-level domain can be added and how that decision should be made.
Some believe that anyone should be allowed to create a top-level domain
registry. They argue that the market will decide which will succeed and
which will not. Others believe that such a system would be too chaotic
and would dramatically increase customer confusion. They argue that it
would be far more complex technically, because the root server system
would have to point to a large number of top-level domains that were
changing with great frequency. They also point out that it would be
much more difficult for trademark holders to protect their trademarks
if they had to police a large number of top-level domains.
All these arguments have merit, but they all depend on facts that
only further experience will reveal. At least in the short run, a
prudent concern for the stability of the system requires that expansion
of gTLDs proceed at a deliberate and controlled pace to allow for
evaluation of the impact of the new gTLDs and well-reasoned evolution
of the domain space. The number of new top-level domains should be
large enough to create competition among registries and to enable the
new corporation to evaluate the functioning, in the new environment, of
the root server system and the software systems that enable shared
registration. At the same time, it should not be so large as to
destabilize the Internet.

[discussion] Irrelevant personal commentary removed.

Individual companies and consortia alike may seek to operate
specific generic top-level domains. Competition will take place on two
levels. First, there will be competition among different generic top-
level domains. Second, registrars will compete to register clients into
these generic top-level domains.

By contrast, existing national registries will continue to administer
country-code top-level domains if these national government seek to assert those
rights. Changes in the registration process for these domains are up to the
registries administering them and their respective national governments.

Some have called for the creation of a more descriptive system of top-level
domains based on industrial classifications or some other easy to understand
schema. They suggest that having multiple top-level domains is already confusing
and that the addition of new generic TLDs will make it more difficult for users
to find the companies they are seeking.

Market driven systems result in innovation and greater consumer choice and
satisfaction in the long run. In the future, directory services of various sorts
will make it easy for users to find the sites they seek regardless of the number
of top-level domains. Attempts to impose too much central order risk stifling a
medium like the Internet that is decentralized by nature and thrives on freedom
and innovation.

[discussion] Separated paragraphs. Personal pronouns removed.

D. The Trademark Dilemma

It is important to keep in mind that trademark/domain name disputes arise
very rarely on the Internet today. NSI, for example, has registered millions of
domain names, only a tiny fraction of which have been challenged by a trademark
owner.

For cyberspace to function as an effective commercial market, businesses must
have confidence that their trademarks can be protected. But where a trademark
from another sphere of use appears in a domain name, consumers may be misled
about the source of the product or service offered on the Internet, and trademark
owners may not be able to protect their rights without very expensive litigation.

On the other hand, management of the Internet must respond to the needs of
the Internet community as a whole, and not trademark owners exclusively. The
balance is to provide trademark holders with the same rights that they have in
the physical world, to prescribe an administrative dispute resolution mechanism
with resort to a court system, and to add new top-level domains carefully during
the transition to private sector funding of the domain name system.

[discussion] minor reorganization for clarity. fixed technical wording.

There are certain steps that could be taken in the application process that
would not be difficult for an applicant, but that would make the trademark
owner's job easier. For instance, gTLD registrants could supply basic information
-- including the applicant's name and sufficient contact information to be able
to locate the applicant or its representative. To deter the pirating of domain
names, the registry could also require applicants to certify the intended use,
purpose, and reason for requesting the domain name that it seeks to register. The
databases also could be kept up to date by a requirement that domain name
registrants maintain up-to-date contact information.

Each name registry must establish minimum dispute resolution and other
procedures related to trademark considerations. Beyond those minimums, registries
would be permitted to establish additional trademark protection and trademark
dispute resolution mechanisms.

[discussion] replaced "superior rights" language with proper trademark issues
relating to usage. Speculative language more appropriate to a request for
comments than rule is removed.

Shortly after their introduction into the root, a study will be funded by the
U.S. Department of Commerce on the effects of adding new gTLDs and related
dispute resolution procedures on trademark and intellectual property right
holders. This study should be conducted under the auspices of a body that is
internationally recognized in the area of dispute resolution procedures, with
input from trademark and domain name holders and registries. The findings of this
study should be submitted to the gTLD Policy Oversight Committee and considered
when it makes decisions on the creation and introduction of new gTLDs.
Information on the strengths and weaknesses of different dispute resolution
procedures should also give guidance for deciding whether the established minimum
criteria for dispute resolution should be amended or maintained. Such a study
could also provide valuable input with respect to international trademark
harmonization generally.

[discussion] removed personal pronouns, and references to a new corporation.
Specified source of funding for study.

U.S. trademark law imposes no general duty on a registrar to investigate the
propriety of any given registration.<SUP>2</SUP> Under existing law, a trademark
holder can properly file a lawsuit against a domain name holder that is
infringing or diluting the trademark holder's mark. But the law provides no basis
for holding that a registrar's mere registration of a domain name, at the behest
of an applicant with which it has an arm's-length relationship, should expose it
to liability.<SUP>3</SUP> Infringers, rather than registrars, registries, and
technical management bodies, should be liable for trademark infringement. Until
case law is fully settled, however, registries can expect to incur legal expenses
in connection with trademark disputes as a cost of doing business. These costs
should not be borne by the IANA or its successor, and therefore registries should
be required to indemnify IANA for costs incurred in connection with trademark
disputes. The evolution of litigation will be one of the factors to be studied by
the study tasked to review Internet trademark issues as the new gTLD structure
evolves.

[discussion] replaced references to "new corporation" with "IANA or its
successor".

---------------------------------------------------------------------------

\2\ See generally MDT Corp. v. New York Stock Exchange, 858 F.
Supp. 1028 (C.D. Calif. 1994).
\3\ See Lockheed Martin Corp. v. Network Solutions, Inc., 1997
WL 721899 (C.D. Calif. 11/17/97); Panavision International v.
Toeppen, 1996 U.S. Dist. LEXIS 20744, 41 U.S.P.Q.2d 1310 (C.D.
Calif. 1996).
---------------------------------------------------------------------------

E. The Intellectual Infrastructure Fund

In 1995, NSF authorized NSI to assess new domain name registrants a
$50 fee per year for the first two years, 30 percent of which was to be
deposited in a fund for the preservation and enhancement of the
intellectual infrastructure of the Internet (the ``Intellectual
Infrastructure Fund'').
In excess of $46 Million has been collected to date. In 1997,
Congress authorized the crediting of $23 Million of the funds collected
to the Research and Related Activities Appropriation of the National
Science Foundation to support the development of the Next Generation
Internet. The establishment of the Intellectual Infrastructure Fund
currently is the subject of litigation in the U.S. District Court for
the District of Columbia.
As the U.S. government is seeking to end its funding of the domain name
system, the provision in the cooperative agreement regarding allocation of a
portion of the registration fee to the Internet Intellectual Infrastructure Fund
should terminate on April 1, 1998, the beginning of the ramp-down period of the
cooperative agreement.

[discussion] removed personal pronouns, replaced "role in" with "funding of".

VII. The Transition

A number of steps must be taken to create the system envisioned in
this paper.
1. NSI and the U.S. government must reach agreement on the terms
and conditions of NSI's evolution into one competitor among many in the
registrar and registry marketplaces. A level playing field for
competition must be established.
2. A process must be laid out for making the management of the root
server system more robust and secure, and for transitioning that
management from U.S. government funding to the constituent organizations.

[discussion] removed unnecessary steps.

A. The NSI Agreement

The U.S. government will ramp down the NSI cooperative agreement
and phase it out by the end of September 1998. The ramp down agreement
with NSI should reflect the following terms and conditions designed to
promote competition in the domain name space.

1. NSI will effectively separate and maintain a clear division between its
current registry business and its current registrar business. NSI will shift
operation of .edu to another unaffiliated not-for-profit entity designated by the
U.S. Department of Education. NSI will continue to operate .com, .net and .org
until September 31, 1998, but on a fully shared-registry basis; the registry will
treat all registrars on a non-discriminatory basis and will price registry
services on a not-for-profit cost-recovery basis.

2. As part of the transition to a fully shared-registry system, NSI
will develop (or license) and implement the technical capability to
share the registration of its top-level domains with any registrar so
that any registrar can register domain names therein by July 1, 1998.

3. NSI will give the U.S. government a copy and documentation of all the
data, software, and appropriate licenses to other intellectual property generated
under the cooperative agreement, for use by the IANA or its successor for the
benefit of the Internet.

4. NSI will turn over control of its root servers when instructed to do so by
the U.S. government.

5. NSI will agree to meet the requirements for registries and
registrars set out in Appendix 1.

[discussion] specifies who names non-profit for .edu. Add deadline for rebid
of others. Add deadline for multiple registrars. Replaced "new corporation"
with "IANA or its successor". Specify all root servers.

B. Competitive Registries, Registrars, and the Addition of New gTLDs

Over the past few years, several groups have expressed a desire to
enter the registry or registrar business. Ideally, the U.S. government
would stay its hand.

[discussion] Inaccurate and personal commentary removed.

Registries and New gTLDs

This proposal calls for the creation of up to five new registries,
each of which would be initially permitted to operate one new gTLD. As
discussed above, that number is large enough to provide valuable
information about the effects of adding new gTLDs and introducing
competition at the registry level, but not so large as to threaten the
stability of the Internet during this transition period. In order to
designate the new registries and gTLDs, IANA must establish equitable,
objective criteria and processes for selecting among a large number of
individuals and entities that want to provide registry services.
Unsuccessful applicants will be disappointed.

[discussion] "Pioneer preference" removed. There were never any previous
IANA requests. Personal commentary removed.

The first five entities to meet the technical, managerial, and site
requirements described in Appendix 1 will be allowed to establish a domain name
registry. The gTLD Council of Registrars will engage neutral accounting and
technical consultancy firms to evaluate a proposed registry under these criteria
and certify an applicant as qualified. These registries may select, in
order of their qualification, from a list of available gTLDs.

[discussion] Personal commentary removed.

The registry must operate on a not-for-profit, cost-recovery basis, treating
all registrars on a non-discriminatory basis, with respect to pricing, access and
rules. Each TLD's registry should be equally accessible to any qualified
registrar, so that registrants may choose their registrars competitively on the
basis of price and service. The registry will also have to agree to modify its
technical capabilities based on protocol changes that occur in Internet
technology so that interoperability can be preserved. The registry will be
permitted to provide and charge for value-added services, over and above the
basic services provided to registrars.

[discussion] specified cost-recovery basis. removed future wish list.

Registrars

Any entity will be permitted to provide registrar services as long as it
meets the basic financial, technical, managerial, and site requirements as
described in Appendix 1 of this paper. Registrars will be allowed to register
clients into any top-level domain for which the client satisfies the eligibility
rules, if any.

[discussion] added financial basis.

C. The Root Server System

IANA and the U.S. government, in cooperation with NSI, the IAB, and
other relevant organizations will undertake a review of the root server
system to recommend means to increase the security and professional
management of the system. The recommendations of the study should be
implemented as part of the funding transition process.

D. The .us Domain

At present, the IANA administers .us as a locality based hierarchy
in which second-level domain space is allocated to states and US
territories.<SUP>4</SUP> This name space is further subdivided into
localities. General registration under localities is performed on an
exclusive basis by private firms that have requested delegation from
IANA. The .us name space has typically been used by branches of state
and local governments, although some commercial names have been
assigned. Where registration for a locality has not been delegated, the
IANA itself serves as the registrar.
---------------------------------------------------------------------------

\4\ Management principles for the .us domain space are set forth
in Internet RFC 1480, (http://www.isi.edu/in-notes/rfc1480.txt)
---------------------------------------------------------------------------

Some in the Internet community have suggested that the pressure for unique
identifiers in the .com gTLD could be relieved if commercial use of the .us space
was encouraged. Commercial users and trademark holders, however, find the current
locality-based system too cumbersome and complicated for commercial use. Expanded
use of the .us TLD could alleviate some of the pressure for new generic TLDs and
reduce conflicts between American companies and others vying for the same domain
name.

Clearly, there is much opportunity for enhancing the .us domain
space, and the .us domain could be expanded in many ways without
displacing the current geopolitical structure. Over the next few
months, the U.S. government will work with the private sector and state
and local governments to determine how best to make the .us domain more
attractive to commercial users. It may also be appropriate to move the
gTLDs traditionally reserved for U.S. government use (i.e. .gov and
.mil), into a reformulated .us ccTLD.

The U.S. government will further explore and seek public input on
these issues through a separate Request for Comment on the evolution of
the .us name space. However, we welcome any preliminary comments at
this time.

[no changes]

E. The Process

The U.S. government recognizes that its unique role in the Internet
domain name system should end as soon as is practical. We also
recognize an obligation to end this involvement in a responsible manner
that preserves the stability of the Internet. We cannot cede authority
to any particular commercial interest or any specific coalition of
interest groups. We also have a responsibility to oppose any efforts to
fragment the Internet, as this would destroy one of the key factors--
interoperability--that has made the Internet so successful.
Our goal is to seek as strong a consensus as possible so that a
new, open, and accountable system can emerge that is legitimate in the
eyes of all Internet stakeholders. It is in this spirit that we present
this paper for discussion.

[presumably, the above section will be deleted or substantially revised in
the final rule]

...

Appendix 1--Recommended Registry and Registrar Requirements

In order to ensure the stability of the Internet's domain name system,
protect consumers, and preserve the intellectual property rights of trademark
owners, all registries of generic top-level domain names must meet the set of
financial, technical, managerial, and site requirements outlined below. Only
prospective registries that meet these criteria will be allowed by IANA to
register their gTLD. If, after it begins operations, a registry no longer meets
these requirements, IANA may transfer management of the domain names under that
registry's gTLD to another organization.

[discussion] Fixed technical wording. Added financial.

Independent testing, reviewing, and inspection called for in the
requirements for registries should be done by appropriate certifying
organizations or testing laboratories rather than IANA itself,
although IANA will define the requirements and the procedures for
tests and audits.
These requirements apply only to generic TLDs. They will apply
to both existing gTLDs (e.g., .com, .edu., .net, .org) and new
gTLDs. Although they are not required to, many ccTLD
registries and registrars may wish to assure their customers that
they meet these requirements or similar ones.

[discussion] Personal commentary removed.

Registries will be separate from registrars and have only
registrars as their customers. If a registry wishes to act both as
registry and registrar for the same TLD, it must do so through
separate subsidiaries. Appropriate accounting and confidentiality
safeguards shall be used to ensure that the registry subsidiary's
business is not utilized in any manner to benefit the registrar
subsidiary to the detriment of any other registrar.
Each top-level domain (TLD) database will be maintained by only
one registry and, at least initially, each new registry can host
only one TLD.

[no changes]

Registry Requirements

1. An independently-tested, functioning Database and
Communications System that:
a. Allows multiple competing registrars to have secure access (with
authentication) to the database on an equal (first-come, first-served) basis.
b. Is both robust (24 hours per day, 365 days per year) and scalable (i.e.,
capable of handling high volumes of entries and inquiries).
c. Has multiple high-throughput (at least 1.5 Mbps) connections
to the Internet via at least two topologically separate Internet Service
Providers.
d. Includes a daily data backup and archiving system.
e. Incorporates a record management system that maintains copies
of all transactions, correspondence, and communications with
registrars for at least the length of a registration contract.
f. Provides free access to the software and customer interface
that a registrar would need to register new second-level domain
names.
g. An adequate number (at least 5) topologically distributed global secondary
servers connected to the Internet for each TLD, in addition to the primary master.

[discussion] removed encryption. removed searchable database due to privacy
concerns. fixed technical wording.

2. Independently-reviewed Management Policies, Procedures, and
Personnel including:
a. Alternate (that is, non-litigation) dispute resolution providing
a timely and inexpensive forum for trademark-related complaints.
(These procedures should be consistent with applicable national laws
and compatible with any available judicial or administrative
remedies.)
b. A plan to ensure that the registry's obligations to its customers will be
fulfilled in the event that the registry goes out of business. This plan must
indicate how the registry would ensure that domain name holders will continue to
have use of their domain name and that operation of the Internet will not be
adversely affected. This plan should include a performance bond relating to the
anticipated number of registrations, updated on a quarterly basis.
c. Procedures for assuring and maintaining the expertise and
experience of technical staff.
d. Commonly-accepted procedures for information systems security
to prevent malicious crackers and others from disrupting operations
of the registry.

[discussion] specified performance bond. fixed technical wording.

3. Independently inspected Physical Sites that feature:
a. A backup power system including a multi-hour power source.
b. A high level of security due to twenty-four-hour guards and
appropriate physical safeguards against intruders.
c. A remotely-located, fully redundant and staffed twin facility
with ``hot switchover'' capability in the event of a main facility
failure caused by either a natural disaster (e.g., earthquake or
tornado) or an accidental (fire, burst pipe) or deliberate (arson,
bomb) man-made event. (This might be provided at, or jointly
supported with, another registry, which would encourage
compatibility of hardware and commonality of interfaces.)

[discussion] fixed technical wording.

Registrar Requirements

The following are the minimal qualifications that IANA should mandate that
each registry impose and test or inspect before allowing a registrar to access
its database(s). Any additional requirements imposed by registries on registrars
must be approved by IANA and should not affect the stability of the Internet or
substantially reduce competition in the registrar business.

[discussion] removed irrational and irrelevant specifications. Registries
cannot remove or refuse registrations, or exercise any other discretionary
authority.

1. A functioning Database and Communications System that
supports:
a. Secure access (with authentication) to the registry.
b. Robust and scalable operations capable of handling moderate
volumes.
c. A daily data backup and archival system.
d. A record management system that maintains copies of all
transactions, correspondence, and communications with all registries
for at least the length of a registration contract.

[discussion] removed encryption. removed irrational and irrelevant
specifications; there is no technical reason for specifying the number of ISPs.

2. Management Policies, Procedures, and Personnel including:
a. A plan to ensure that the registrar's obligations to its customers and to
the registries will be fulfilled in the event that the registrar goes out of
business. This plan must indicate how the registrar would ensure that domain name
holders will continue to have use of their domain name and that operation of the
Internet will not be adversely affected. This plan should include a performance
bond relating to the anticipated number of registrations, updated on a quarterly
basis.
b. Commonly-accepted procedures for information systems security
to prevent malicious crackers and others from disrupting operations.

[discussion] specified performance bond. fixed technical wording.

3. Independently inspected Physical Sites that features:
a. A backup power system.
b. Appropriate physical safeguards against intruders.
c. Remotely-stored backup files to permit recreation of customer
records.

[discussion] removed irrational and irrelevant specifications; there is no
technical reason for specifying the 24 hour guards.

Appendix 2--Minimum Dispute Resolution and Other Procedures Related to
Trademarks

1. Minimum Application Requirements.
a. Sufficient owner and contact information (e.g., names, mail
address for service of process, e-mail address, telephone and fax
numbers, etc.) to enable an interested party to contact either the
owner/applicant or its designated representative; and a
b. Certification statement by the applicant that:

--It is entitled to register the domain name for which it is
applying and knows of no entity with superior rights in the domain
name; and
--It intends to use the domain name.

2. Searchable Database Requirements.
a. Utilizing a simple, easy-to-use, standardized search
interface that features multiple field or string searching and the
retrieval of similar names, the following information must be
included in all registry databases, and available to anyone with
access to the Internet:

--Up-to-date ownership and contact information;
--Up-to-date and historical chain of title information for the
domain name;
--A mail address for service of process;
--The date of the domain name registration; and
--The date an objection to registration of the domain name was
filed.

3. Updated Ownership, Contact and Use Information.
a. At any time there is a change in ownership, the domain name
owner must submit the following information:

--Up-to-date contact and ownership information; and
--A description of how the owner is using the domain name, or, if
the domain name is not in use, a statement to that effect.

4. Alternative Dispute Resolution of Domain Name Conflicts.
a. There must be a readily available and convenient dispute
resolution process that requires no involvement by registrars.
b. Registries/Registrars will abide by the decisions resulting
from an agreed upon dispute resolution process or by the decision of
a court of competent jurisdiction.
If an objection to registration is raised within 30 days after
registration of the domain name, a brief period of suspension during
the pendency of the dispute will be provided by the registries.

[discussion] the above are largely irrelevant, and contradicted by other
authority.

###

From: Phillip C. Reed <reedpc@libbey.com>
To: NTIADC40.NTIAHQ40(dns)
Date: 3/23/98 3:38pm
Subject: Comments on Domain Name Enhancement Green Paper

Others have addressed in great depth the idea of handling name
registrations, the mechanics of adding top level domains, and other
important issues. I will not address these, since time is short.

However, there is one issue that I believe must be continually emphasized:
Domain names are not the same as trademarks.

There is a great body of trademark law. The idea of domain names was
developed without reference to that law. Also, trademarks are handled
differently in different countries. Domain names, as with the Internet in
general, have little respect for international borders. To try to force an
equivalence is certain to lead to conflict, as it already has in several
notable cases.

Many people have made the claim that adding five or seven top-level domains
will alleviate the trademark pressure on .com, but they have not made the
case that supports this claim. In fact, to my mind, it is more likely that
trademark holders will rush to register their trademark as a second level
domain in as many top level domains as make sense to them, regardless of
the logic. And, there will continue to be aggressive companies that will
force the issue, even up to including lawsuits, against what they perceive
as being a violation of a trademark. This is happening even now, despite
the lack of any real equivalence of trademarks to domain names.

Any extension to the domain name system should address this issue
explicitly.

phillip c. reed
libbey inc.
reedpc@libbey.com

...phil

###