From: <KathrynKL@aol.com>
To: NTIA.NTIAHQ(usdomain)
Date: 10/5/98 12:10am
Subject: DNRC Comments on .US Reorganization

The Domain Name Rights Coalition hereby submits its comments on the
enhancement of the .US domain space. The attached document is in Word Perfect
5.1. Should there be any problem reading this document, please contact me.

Kathryn Kleiman
General Counsel, DNRC

Response to the National Telecommunications Administration Request for Comments on the enhancement of the .us Domain Space
 

By:

The Association for the Creation and Propagation of Internet Policies, Inc. (A-TCPIP) and its working group the Domain Name Rights Coalition (DNRC),
 

October 5, 1998
 

INTRODUCTION
 

DNRC is a public interest organization that has been working on the rights of domain name owners since 1996. DNRC represents the interests of individuals, entrepreneurs and small businesses. Its website with comments, speeches and letters to the White House, the Department of Commerce, the World Intellectual Property Organization and the International Ad Hoc Committee can be found at http://www.domain-name.org.
 
 

BACKGROUND
 

DNRC wishes to thank the National Telecommunications and Information Administration (NTIA) for expeditiously fulfilling the commitment made in the White Paper to conduct this proceeding. DNRC has long supported restructuring the .us domain space to provide both new commercial opportunities and safe spaces for non-commercial speech. DNRC first raised the issue of restructuring the .us domain space in its comments to the Department of Commerce Notice of Inquiry on August 18, 1997. Following these comments, DNRC discussed the restructuring of the .us domain space in its ex parte meeting with Ira Magaziner and Becky Burr on December 23, 1997, and submitted a more detailed written plan on January 12, 1998. This plan was circulated at the Internet Executive Summit in McLean, Virginia on February 3, 1998. Finally, in its comments on the administration "Green Paper" filed March 23, 1998, DNRC continued to urge the reorganization of .us domain space to create greater opportunities for commercial and non-commercial speech. Copies of all of these documents are available at DNRC's website, www.domain-name.org.
 
 

COMMENTS
 

Before addressing the specific questions raised by NTIA, DNRC wishes to address several items of general concern appropriate to this proceeding:
 

1. The Commitment of .us to the World Wide Alliance of TLD Registries (WWTLD)
 

On August 11, 1998, a meeting of the coordinators of the country code TLDs (ccTLDs) took place in Singapore, as part of the ongoing process under the White Paper to create a new private corporation to administer certain aspects the Internet. At this meeting, the ccTLD coordinators formed a loose association called the World Wide Alliance of TLD Registries (WWTLD) to coordinate policy, particularly in reference to the proposed new corporation. WWTLD adopted a policy statement supporting the draft bylaws released by Dr. Jon Postel, and explicitly subjecting ccTLDs to the new corporation and proposing that the WWTLD be named as the "Names Support Organization" of the new corporation. Documents setting forth the sequence of events and the position of WWTLD may be found at www.wwtld.org.
 

DNRC does not comment here on the nature and conduct of the WWTLD. Rather, DNRC is concerned that Dr. Postel, apparently without public consultation or authorization from any United States government official, committed the United States and the .us domain space to the WWTLD. This action raises serious concerns regarding this proceeding, and the control the United States will exercise over its own domain space. Furthermore, it raises a strong conflict of interest. In essence, Dr. Postel committed the United States through the .us space to support his own draft bylaws, written in his role as head of IANA.
 

A first concern of this proceeding should be to establish that the United States, through this proceeding by NTIA, exercises exclusive control over the .us space. No one has ever suggested that Dr. Postel, as a contractor managing a valuable United States asset, was authorized to develop his own foreign policy. This is especially true where the existing conflict of interest raises such a strong appearance of impropriety. DNRC urges NTIA to explicitly reject the WWTLD statement of principles signed without authorization by Dr. Postel and reassert control of a vital and strategic United States resource. That the United States should surrender its sovereignty over its own domain space, without public comment or consideration by a member of the United States government, is absurd. If permitted and retroactively approved, it makes a mockery of this public proceeding.
 

It should be noted that Canada, which is in the process of reforming its .ca domain, declined to sign the statement of principles. If the United States hopes to maintain its right to reform its own domain space independently, it likewise should not subject itself to the new corporation or the WWTLD.
 

2. The Proposal of the United States Postal Service (USPS)
 

Accounts have appeared in the Internet press that the USPS has developed a proposal to assume control of the .us domain space. Accounts differ whether a request to the USPS was made by Dr. Postel or by someone on the Administration's Internet Task Force in advance of this notice of inquiry. If these rumors are true, DNRC wishes to express in the strongest terms its dismay with any request which would violate the open nature of the process conducted by NTIA. As noted above, NTIA has provided legitimacy and a central forum for this process through its openness and neutrality. DNRC also notes that, if the request came from Dr. Postel, it again presents a potential conflict of Interest. In any event, the incident clearly demonstrates the need both for NTIA to assume explicit jurisdiction over the .us domain space and to continue to provide an open and neutral process.
 

3. Appropriate Principles to Govern the .us Space
 

In its response to the White Paper, DNRC attached a detailed plan for restructuring the .us domain and the appropriate principles on which such restructuring must take place. DNRC continues to believe that these principles provide the basic building blocks to build a new .us domain that will serve as a "flagship, safe haven, and laboratory." As discussed in that proposal, because of the tremendous prestige American technological leadership and innovation have in the world, other nations and private industry would look to the .us domain for appropriate models of Internet management. Use of the .us domain also permits the United States to establish guiding principles for use within the domain space that enshrine core American values such as open communication, free market competition, and respect for entrepreneurism. In this way, America can lead development of the Internet in the same fashion it has lead the development of democracy in the world in the 20th Century - by consistently providing a shining example.
 

Reorganizing .us also creates a safe haven for American citizens and interests. The .us domain would provide individuals with a place for political speech free from fear of violating the content restrictions of other countries. It would also provide a laboratory for entrepreneurs to provide Internet services, such as registering second level domains, without risking the integrity of the entire Internet. It would allow the United States to experiment and discover the proper balance of free market enterprise and government oversight to produce a dynamic, viable Internet that protects both private and public interests.
 

Further, creating new second level domains within .us (if properly done) will eliminate considerable pressure from the top level domains (TLDs) by giving individuals, small businesses, and entrepreneurs in the United States a space within their own country code far from the international competition for .COM and far from the policies of dispute resolution now being developed by international organizations without the commitment of the United States to free speech and open communication.
 

DNRC believes that it is impossible at this time to create a perfect governing structure out of whole cloth, and foolish to try. Since DNRC first raised the issue of .us domain-space reform over a year ago, we have all gained considerable experience in developing forms of Internet governance. The recent process that has evolved since June in the creation of the new corporation to replace IANA demonstrates the many difficulties and potential pitfalls in reaching consensus among diverse stakeholders. In the White Paper process, the end of the cooperative agreement between Network Solutions, Inc. (NSI) and the National Science Foundation (NSF) created a definite time limit in which to create the proposed corporation. Such a constraint does not exist here. Although the situation in .us is far from satisfactory, the United States can afford to exercise patience and engage in deliberative processes. It is better to proceed with due consideration, although without undue delay, to ensure that we arrive at the right solution.
 

DNRC, therefore, does not propose a specific governing body. Rather, DNRC proposes a small number of core principles upon which it believes governance of .us must be built. A domain space administered under these principles, we believe, will find the proper balance between commercial interests, private interests, and government interests.
 

A) Policy decisions regarding the reorganization and governance of .us must remain open, public, transparent, and accessible to all Internet stakeholders. The United States government played a crucial role in resolving the arguments plaguing DNS reform by providing a respected, neutral forum for discussion and debate. It should continue to exercise this role in the .us reform. Indeed, because the .us domain-space is a valuable asset and resource of the United States, it is entirely appropriate for the United States government to have an ongoing and active role in reforming and restructuring the .us domain.
 

B) The Internet is "the most participatory marketplace of mass speech that this country and indeed the world has yet seen." ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa June 11, 1996), affirmed, _ US _ (June 26, 1997). Accordingly, protection of the openness and freedom of this speech will be a primary priority of Internet policy and protections.
 

C) No Internet policy will prevent individuals or businesses from using their full imagination and creativity to create and label products, services and content for the Internet, just as they do in traditional channels of communication and commerce.
 

D) Policies for the Internet will affirmatively and expressly set out protections for free speech and open communication.
 

E) Internet policies will protect and promote the development of new Internet products and services by entrepreneurs and small businesses, as well as the ongoing marketing and sale of products and services by long-established companies.

DNRC reiterates its long-held position that there must be a separation between decisions based on technology and decisions based on policy. In particular, while DNRC agrees with concerns expressed for technical stability of the Internet, it disagrees that artificial constraints based upon the economic fears of existing stakeholders should limit the scope of entrepreneurial opportunity.
 

Finally, DNRC challenges the accepted notion that the .us cc:TLD must be administered under a single regime or by a single contractor. Instead, DNRC believes that .us should permit multiple second level domains (SLDs). Thus, ISI and Dr. Postel could continue to administer the current city and state second and third level domains, if the U.S. Government wished to renew this contract. At the same time, new registries and registrars could enter the market through .us. The potential remains for .com.us (commercial speech), .pol.us (political organizations), .pers.us (personal websites), .sb.us (small businesses) and other SLDs. In particular, DNRC notes that it would be appropriate to establish and maintain SLDs devoted to personal speech and political speech- areas for which there are no designated top level domains (TLDs) or US second level domains at this time.
 

RESPONSES TO SPECIFIC QUESTIONS
 

1. How should the present geographic structure of .us be extended or modified? What changes should be made in RFC 1480 or the posted policies for .us?

As stated above, DNRC does not believe that .us should continue to be administered exclusively under RFC 1480. The domain space should be opened to new SLDs. Furthermore, NTIA should continue to foster development of a proper governance structure for the .us space by (1) assuming direct authority over .us; (2) adopting the principles set forth above as the guiding principles for the .us domain-space reform; and (3) continuing to develop an appropriate structure through stakeholder consensus and examination of appropriate models.
 

In this regard, DNRC suggests that the National Electric Reliability Council, a voluntary association which sets technical standards for administration of the national power grid, may provide an informative model. The national grid is divided into regions, with each region administered by a regional reliability council. Criteria for membership in the council is objective: any FERC regulated entity on the power grid. Stability of the national grid is dependent upon the National Energy Reliability Council, NERC, whose members are the regional councils. Representatives from relevant government agencies sit on the regional and national councils as observers. Most significantly, the power of the councils is strictly limited to one issue: reliability of the grid. Again, standards are objective and measurable. If adding a new line would endanger the stability of the grid, the line cannot be hooked into the grid. If the line will not endanger the stability of the grid, then it connects to the grid, even if it damages the economic interests of the members of the regional council. Such a model applied in .us might create a council composed of registries and registrars within the .us domain, and other affected parties. Such a council would administer the .us domain space consistent with maintaining technical stability, without regard to competition.
 

In looking at the technical feasibility of having multiple registrars and registries in the .us domain, NTIA could consider using the consulting services of organizations such as Mitretek, which have experience in helping the U.S. Government design technical systems for the public sector.
 

2. What are the benefits and costs of different options for allocating second-level domains under .us? How should the allocation of such second-level domains be decided and administered? What should be the terms of delegation?
 

It is unclear here what is meant by "delegation." DNRC assumes this means the delegated power to enter names in the .us root. As discussed above, this question needs further research and stakeholder consensus. As an initial matter, DNRC believes that any SLD registry that demonstrates under objective criteria that its addition poses no threat to the stability of the network should be entered in the root. If merely technical criteria are employed, it may be appropriate to have a government agency actually administer the root. The government agency could develop initial stability criteria and, possibly, the governing documents of the new council. Alternatively, the council (based on the FERC model discussed above) could fashion the stability criteria and governing documents itself through an open and public proceeding with only the oversight of a government agency.
 

The benefits of open SLD registration include true market competition for registry services, and the subsequent innovation the free market stimulates. It would create a space in which the United States could experiment and determine the proper balance of interests and governance structure, while insuring that such an experiment does not destabilize the Internet as a whole. Finally, the benefits would include the creation of zones for non-commercial speech to flourish and prosper. This will keep the Internet vital and interactive, rather than forcing it into the passive, stifling producer/consumer mode now exhibited by traditional media.
 
 

3. Specifically, should special-purpose second-level domains be created under .us? What are the benefits and costs of creating particular special-purpose domains (e.g., industry-specific, credentialing, zoning)? How should such domains be created and administered? Are there reasons to map names and other addressing and identification systems (e.g., postal addresses, telephone numbers, longitude and latitude, uniform resource numbers or others) into .us?
 

DNRC anticipates that, if the .us space is opened to SLD competition, the market will provide suitable incentives for the creation of zones more favorable to commercial speech than the existing .us or gTLDs. For example some SLDs may offer credentialing as a value added service. Similarly, zoning may take place from the desire of businesses to avoid consumer confusion and attract customers actually seeking their services. For example, we may anticipate that most purveyors of "adult entertainment" will naturally want a .xxx or .sex domain. There is no reason to compel zoning, in the sense that there is no need to force businesses of a particular type into a particular SLD.
 

On the other hand, there is a value in "zoning" that creates space for activities that might not ordinarily be supported by the market, such as non-commercial speech. Indeed, it may be appropriate for the United States government to create "public parks" and "safe spaces" for non-commercial speech. DNRC believes, however, that this will ultimately prove unnecessary. If the rules within .us provide the opportunity to create SLDs for non-commercial speech, DNRC believes that the market will support them.
 
 

4. Alternatively, should .us be treated as an unrestricted top-level domain like .com or should one or more specific second-level domains such as .co.us or .com.us be used for unrestricted assignment of domain names (as in .com)? How should such unrestricted domains be administered and by whom?
 

As discussed above, while DNRC believes that .us should not be completely unrestricted, the restrictions should be limited to those necessary to ensure the technical stability of the network and to protect open communication and free speech. Accordingly, multiple SLDs should be permitted, with SLD restrictions developed by the individual registries. While the entire .us zone should, perhaps, be administered by a U.S. agency or a U.S. contractor applying objective, standard criteria, individual SLDs should be administered by any desiring to enter the registry business who meet the objective criteria for entry to the zone.
 

5. How should conflicting proposals and claims to manage or use .us subdomains be resolved? Who should have responsibility for coordinating policy for .us over the long term? What public oversight, if any, should be provided?

 

The Internet has traditionally resolved these conflicts on a first come, first served basis. Such a system has the advantage of providing an objective means of resolving conflicts, and rewards those who are first to market. This principle may not be sufficient however, and DNRC believes that the matter will need further study by whatever governing structure ultimately emerges from the open processes described above. It would be appropriate in the future to consider what conflicts might arise that would require different levels of public oversight or dispute resolution.
 

6. What rules and procedures should be used to minimize conflicts between trademarks and domain names under .us? Should this problem be treated differently at international, national, state, and local levels? Should special privileges be accorded to famous trademarks, such as a right to register directly under .us or a procedure to preempt the use of the trademark in a range of subdomains?
 

DNRC believes that it should not be the business of the .us domain to resolve trademark disputes. Rather, SLD registries should be permitted to develop policies that address trademark concerns as value added services. SLDs designed to promote noncommercial speech should develop appropriate mechanisms to prevent abuse by commercial interests and deliberate infringers. Contrary to opinions advanced in other fora, DNRC believes that mechanisms and procedures can be developed that would protect the non-commercial nature of a TLD, satisfying both the need to promote non-commercial speech and the need to protect the legitimate interests of trademark holders.
 

DNRC believes that voluntary online mediation and arbitration services should be encouraged, and that the market will support services that prove themselves fair, objective, and cost-effective. The .us domain should refrain from imposing one, uniform, mandatory system. Furthermore, the courts should always be available to a party wishing to enforce its rights against a nameholder.
 

7. What role should states play in the allocation and registration of their respective subdomains? Should commercial names be permitted under states as third-level domains? Or should such third-level domains be limited to special categories such as domestic corporations or other state-licensed entities? Should states and localities operate registries and accept registrations directly? To what extent should state policies be coordinated and through what mechanisms and procedures?
 

DNRC expresses no opinion on the role of states within the legacy .us system. To the extent the states are stakeholders in the broader .us domain space, they should have the same rights and responsibilities as other stakeholders.
 

8. How well has the system of delegating third-level domains (localities) to private registrars on an exclusive basis worked? How could it be improved? Should registrars be accountable to their delegated localities (just as country-code registries are accountable to national governments)? Should registrars be limited to a single jurisdiction? Should multiple competing registrars be able to register under any local, state, or special-purpose domain under .us as in the plan proposed for generic Top-Level Domains?
 

DNRC expresses no opinion on this matter, other than to restate that the .us space should permit multiple SLDs not bound by the existing system.
 

9. How should the operation of the .us registry be supported? Should uniform registration (and renewal) fees be instituted? Should registrars contribute to the operation of the registry?

 

DNRC believes that it would be appropriate for .us to support itself with fees imposed on SLD registries, provided that fees are cost-based and do not create undue barriers to entry. DNRC also believes that it may, in certain circumstances, be appropriate either for .us or for the United States government to subsidize non-commercial speech SLDs.
 

10. What are best management and allocation practices for country-code domains? What practices should be emulated or avoided?
 

DNRC believes that this complex question deserves further study, and would support an extended review of ccTLD administration as part of the ongoing reformation of the .us domain space urged above.

 

11. By what type of entity should .us be administered? Private, governmental, or quasi-governmental? For profit or not-for-profit? What are the advantages and disadvantages of using one type of entity (private, public, for profit, not-for-profit) over the others?
 

As discussed above, these complex questions cannot be easily answered at this time. Rather, following this NOI, NTIA should continue to foster the reformation of the .us space through open, bottoms-up processes. The governing principles given above will provide the effective building blocks and criteria for the next stage of these proceedings. Again, while reformation of the .us space should not be unduly delayed, there is no crisis or deadline forcing an immediate solution. Given the vast potential of the .us space to promote United States leadership in electronic commerce, to promote civic dialog, and to protect our core values of free speech and democracy, the United States government and the Internet stakeholder community should take the time to determine the best answers to these questions.
 

As NTIA continue its stewardship of the reorganization of .us, DNRC requests and recommends that there be additional public notice and comment periods as the ideas for the new governing structure and principles of the .us are focused and refined.
 

CONCLUSION
 

In conclusion, DNRC urges NTIA to continue the open, democratic process of .us reformation. To move the process to the next level, NTIA should take the following steps. First, NTIA should unambiguously state that authority over .us domain space is exercised exclusively by the United States government, not by WWTLD, IANA, ISI, or the new corporation that will emerge under the White Paper. Second, NTIA should adopt the five core principles set forth above as the guidelines for further .us reformation. Third, NTIA should continue to foster both private sector and governmental proposals to reform the .us domain. DNRC suggests that the narrower focus of the next stage of .us reform should focus on the formation of an administrative body, and means of opening the .us zone to new SLDs.
 
 

Respectfully submitted,
 
 

Kathryn Kleiman
General Counsel
A-TCPIP/Domain Name Rights Coalition
INTERNET MATTERS
P.O. Box 25876
Alexandria, VA 22313-5876
Phone: (703) 518-5184
Email: kleiman@internet-matters.com
 

Harold Feld
Assistant General Counsel
A-TCPIP/Domain Name Rights Coalition
COVINGTON & BURLING
1201 Pennsylvania Avenue, N.W.
P.O. Box 7566
Washington, DC 20044-7566
Phone: (202) 662-5132
Fax: (202) 778-5132
Email: hfeld@cov.com

###
 

From: Anthony Ruocco <anthonyr@geocities.com>
To: NTIA.NTIAHQ(usdomain)
Date: 10/5/98 4:46pm
Subject: Comments Regarding Top Level Domain ".us"
 

Attached (in WordPerfect 5.1) are comments in response to the

government's request for comments regarding the Top Level Domain ".us".

The views stated are those of the author, and not necessarily the law

firm Pennie & Edmonds LLP.
 

Increased Use of the Top Level Domain ".us"
To Improve Management of Internet Names and Addresses
©Jonathan E. Moskin
 

Increased international reliance on generic top level domains will intensify global competition for given names among legitimate businesses. International litigation over disputed names will raise complex conflicts of laws questions, jurisdictional problems and difficulties of enforcing judgments. By contrast, national top level domains can be governed according to principles of domestic trademark law and are less likely to cause international conflicts over domain name rights. National domains or subdomains can also be serviced by new registrars or registries. Thus, without the development of any new generic top level domains, the interests of trademark owners seeking to protect their names on the internet; the interests of businesses seeking to establish enduring rights in domain names and the interests of potential competitors to Network Solutions seeking to share in the revenues of registering domain names all could be advanced by increased use of national domains such as ".us".
 

A national registry system would also lessen the burden on the proposed United States not-for-profit corporation to achieve the diplomatic feat of reconciling all competing or conflicting interests of the worldwide internet community, including the national interests of the many countries that will be denied a direct voice in internet governance. To best ensure internet stability, the duties of such a corporation should be limited to technical matters, with policy questions left to separate national bodies. The interests of trademark owners and the interests of the internet community generally in establishing fair and clear rules for maintaining domain name rights would thus be served best by further developing the ".us" domain space and requiring overall internet governance to adhere as closely as possible to national laws and a national model of governance.
 

1. Avoidance of International Conflicts

The territoriality of trademark rights is a bedrock principle of trademark law. Famous marks aside,(1) use or registration in one jurisdiction do not confer rights (or, generally, liabilities) elsewhere.(2) The internet by contrast, is without territorial boundaries. Trademark law also permits identical marks to be used simultaneously not only in different territories, but also by two or more non-competing businesses within any given country, provided there is no likelihood of confusion.(3) Thus, "Apple" can serve simultaneously as a trademark for computers, for a bank or for sound recordings. The internet, by contrast, is not nearly so flexible, since within any given top level domain (for instance, the top level domain ".com") only one party may own the domain name "apple.com" or any other given domain name.
 

Internationalizing domain name registries will herd the entire world into generic domain spaces in which all must compete for rights in any given name within that top level domain. Even within the United States, considerable conflict has been caused because two or more noncompeting businesses that can co-exist lawfully using the identical trademark (e.g., EPIX for printed circuit boards and EPIX for entertainment information services)(4) may not simultaneously use the identical domain name. The likelihood of finding two or more entities legitimately using the same or similar names can, of course, only increase when the relevant field is expanded from one country to the entire planet. Because proposals to add new gTLD's that cut across national boundaries insufficiently acknowledge trademark principles of territoriality, the internet of the future may be visited with needless international conflicts among legitimate businesses.
 

The possible benefits of adding a small number of gTLD's (such as the five proposed in the Green Paper or the seven proposed by CORE) is unlikely to offset the foreseeable geometric increase of conflicts from increased reliance on international gTLD's. This is particularly so given the amorphous scope of the proposed new top level domains. For instance, the proposed gTLD ".firm" blends seamlessly with ".shop". Both would likely encompass all or virtually all forms of business. Both too would appear to overlap in relevant respects with ".rec" and ".arts" -- at least for businesses involved in the entertainment industry. Neither differs perceptibly from the existing gTLD ".com". Given the increasing consolidation of the news and entertainment industries, the gTLD ".arts" (for cultural and entertainment services) likewise intersects with ".info" (for information services). Because of the fuzzy scope of the proposed gTLD's and their many areas of overlap, numerous legitimate businesses will likely seek to establish rights in more than one (and maybe all) of the new gTLD's. If businesses do seek multiple domain name registrations, the new gTLDs will be less likely to remedy the perceived problem of domain name scarcity that often has been cited as a reason for change.(5)
 

Without sacrificing the global interoperability of the internet, the domain name registry system need not itself be utterly borderless. There are already 241 separate country-specific or "national" top level domains, such as "us." for the United States, ".de" for Germany, ".ne" for the Netherlands, and so on. Although the ".us" TLD has not been widely used, and although it may be very difficult to re-orient American and other businesses already successfully doing business in the gTLD ".com" to the national TLD ".us", a geographically-oriented system has clear advantages. The most obvious such advantage is that a system of national registries would be in harmony with trademark principles of territoriality. Under a system of national top level domains, disputes over domain name rights could be decided under the domestic laws of each given country. And where litigation is necessary to resolve rights in a domain name, issues of extraterritorial jurisdiction and foreign service of process need not arise. Such issues need never arise if registration in a national TLD also required appointment of an agent for service and consent to jurisdiction.(6)
 

The NTIA Green Paper acknowledged that increased use of the ".us" domain could help resolve existing domain name conflicts.(7) The White Paper likewise recommends development of the ".us" domain to make it more attractive to commercial users.(8) The original proposal of the International Ad Hoc Committee likewise favored increased use of the ".us" domain as a means of reducing conflicts in the ".com" domain.(9) Indeed, the existence already of 241 national registries, in which anyone can register a domain name (regardless of national domicile), raises doubts about the argument for domain name scarcity. By offering unique services or by clever marketing, such national registries already provide a meaningful alternative to the top level domain ".com".
 

Although industry-oriented gTLD's (such as ".firm" or ".store" or other possible denominations) may help ease some conflicts among trademark owners sharing similar names or marks, the addition of new domains could not possibly erase all such problems -- nationally or globally. Very simply, internet commerce will never be free of the types of trademark conflicts that have always existed in ordinary commerce.
 

However, the value of industry-oriented domains (such as ".store" or ".arts", or more industry-specific denominations) might still be accommodated within a national system of internet governance by using such registries as second level domains (e.g., ".us.store"). This is the system actually used in the TLD ".uk", for the United Kingdom. Moreover, since the distinction of principal relevance in trademark law is between commercial and non-commercial uses, many benefits are apparent from a top level -- or, within a national system, second level -- domain such as the ".nom" suggested by CORE for personal (non-commercial) use. The top level domains ".edu" and ".gov" are also sufficiently non-commercial to justify separate treatment in domain name registration and dispute resolution procedures.(10) Specially protected First Amendment activities, such as news gathering and publication, might also merit separate treatment in the .info domain proposed by CORE or a similar .news domain. Even more detailed, industry-specific, second level domains could be implemented as deemed necessary or appropriate by individual countries. Individual countries could also encourage (or discourage) competition among registrars or registries based on domestic needs, desires or legal constraints.
 

Although much of the business transacted on the internet is national or international in its reach, much is also purely local. Individuals establish websites to interact with friends; local businesses advertise their products or services locally, and local governments create forums to address neighborhood needs. Within any one country, regional second or third level domains (e.g., ".us.ny") can and should be used for internet sites of distinctly local appeal, such as local school board issues or local restaurants or jazz clubs. The ".us" domain already permits precisely such second level domains. By designating domain names and websites as having a principally local appeal, purely local users might also be less subject to (although not entirely free from) suit in remote jurisdictions. The questions whether and under what circumstances a presence on the internet is a purposeful availment of the privilege of conducting business in any given state(11) already been the subject of extensive judicial analysis.(12)

Other emerging or foreseeable international conflicts (having no direct relationship trademark law) might also be better addressed in a national internet governance system. Issues such as privacy rights, use of encryption technologies, freedom of expression, securities offerings, and taxation might better be regulated (or left unregulated) under a national system of internet governance. Without in any way fencing in the operation of the internet, incorporating into internet management a few good fences may help make for better neighbors.
 

The top level domain ".com" may already have become the standard for e-commerce. It thus may be difficult to change to any new system -- be it a country-specific system, the proposed new gTLD's contemplated by CORE or any other conceivable arrangement. Indeed, just as the ".us" top level domain has been under-utilized to date, it may be that the proposed new gTLD's will be largely ignored in favor of the existing gTLD ".com". Nor can any such reorientation sacrifice the international interoperability of the internet. However, simple incentives might encourage domain name owners to transition to national registries. For instance, even if new international gTLD's are established, registration in such gTLDs or the top level domain ".com" henceforth could be conditioned on the registrant's consent to jurisdiction everywhere in the world, whereas domain name registrants in national TLD's might be spared such potentially onerous obligations.
 

2. Preventing Piracy and Confusion
 

Disputes over domain names in the gTLD ".com" have been prolific.(13) Although such disputes will never vanish, the number of domain name disputes in the gTLD ".com" seems likely, ultimately, to decline as trademark owners increasingly have come to protect their most valued trademarks by registering them in this top level domain. However, the creation of five or seven (or maybe more) new gTLD's creates whole new frontiers for piracy. The addition of a limited number of new top level domains will add as well to the burden on trademark owners to police and enforce their rights -- or simply establish that they have any rights -- in each new gTLD
 

So long as domain name space and domain names are viewed as scarce resources domain names will possess a market value independent of any inherent value they might otherwise have. This market value will continue to foster competition over names -- in any new gTLDs or the existing gTLD ".com". If, of course, the number of top level domains were multiplied to such an extent that gTLD's and domain names, like ordinary street addresses, ceased to be regarded as scarce resources, domain name conflicts would diminish or disappear. However, such a radical departure poses technical problems and does not appear imminent. In the meantime, each new gTLD will be a potential new venue for domain name piracy, and each will require policing. Clients of the author's firm have already received extortionate demands from parties who have "pre-registered" valuable trademarks as domain names in the not-yet-operational gTLD's overseen by CORE.
 

Creation of new gTLD's also will not prevent likelihood of confusion. To the contrary, it may even facilitate confusion. Because of the complete interoperabilty of the internet, internet users who search a name in cyberspace using any of the available search engines will efficiently expose the existence of identical or similar names in any or all of the new gTLD's. Precisely because of the interoperability of the internet, search engines such as Yahoo, MetaCrawler or AltaVista will readily identify for internet users the possible existence not only of an "apple.com", but also an "apple.firm", an "apple.shop" or an "apple.arts". Infringements anywhere in any one top level domain -- including the proposed new top level domains -- will be immediately accessible to internet users everywhere.
 

If history is any guide, increased reliance on existing national TLD's would not likely stimulate the same lust for piracy as creation of a select few new generic TLD's. The 241 national TLD's already exist, and no one has suggested they be phased out. No doubt because such top level domains are so plentiful, problems of name scarcity and domain name piracy have been less common in the national domains than in the gTLD ".com".
 

Increased use of national TLD's could spark some new conflicts. Creation of multiple industry-specific second level domains (or other generic second level domains) within the existing national system could, likewise, encourage pirates to poach on valuable trademarks in some or all of the new second level domains. However, to the extent an increase in the value of national domain names might attract new cyberpirates, such incentives may be offset by the greater facility with which trademark rights can be policed and enforced in a national system than an international system. Indeed, if greater reliance were placed on a national system, each country could determine its own domestic needs and establish multiple generic, geographic or industry-specific second level domains only as appropriate to suit such requirements. Moreover, because there is little or no problem of domain scarcity in the existing national system, fewer legitimate businesses need compete for rights in the same or similar names and there would be less inherent incentive for piracy caused by a scarcity of domain name space. Indeed, most companies would be more likely to register in their own national TLD's than in foreign TLD's.
 

Without creating any new gTLD's, multiple registrars or registries could compete for registration services in any given national TLD, in possible new second level domains within the national system, or in the existing gTLD's ".com", ".org" and ".net". Creation of new gTLD's is not necessary to create new opportunities for competition. Those countries that do not want or need competition should be permitted to make such determinations themselves.
 

3. Avoiding Jurisdictional Disputes
 

The United States government has often expressed great concern about ceding to any foreign tribunal or authority any adjudicative power over United States citizens. Most recently, there has been much hand-wringing over the Rome conference to establish an international war crimes tribunal, which might have authority to prosecute United States soldiers.(14) Although most would agree that trademark ownership is less politically divisive than open warfare, the interests of United States trademark owners do still merit some similar concerns.
 

The White Paper proposes development, in conjunction with the World Intellectual Property Organization (WIPO), of a single domain name dispute resolution policy to be followed by each new gTLD registry. No specific procedures have yet been proposed or adopted. The CORE proposal similarly contemplates having all registries follow one dispute resolution policy, which already has been developed in some detail.(15) It includes on-line submissions under procedural rules established by WIPO, based in Geneva, Switzerland, and a set of substantive principles developed by CORE to balance the interests of trademark owners with the need for fair administration of domain name registries.(16)
 

CORE's proposed rules, although obviously the product of careful thought, do not reflect the substantive and procedural laws of any specific country. Trademark owners in any given country thus may be concerned that the CORE dispute resolution system will yield results contrary to those under their own national laws. Moreover, although CORE contemplates a right to appeal (within the CORE system), the CORE mediators and arbitrators are not accountable under the laws of any specific jurisdiction. No matter how well-intentioned the CORE proposal, trademark owners thus cannot be certain how the adjudicative power given to such internationally-at-large arbitrators will be wielded -- or what recourse they may have for abuses of process.

A party that does not consent to adjudication of valued domain name rights by a potentially unaccountable tribunal applying an unknown or uncertain body of substantive and procedural law has reason to choose instead to litigate in a more familiar forum. Domestic trademark or domain name owners may also seek tactical advantages of suing locally to protect foreign rights. By internationalizing the domain name registry system, and hence the domain name dispute resolution system, the introduction of new gTLD's may thus engender new international litigation on a scale wholly new to trademark law. Such suits will likely raise difficult questions concerning personal jurisdiction over foreign domain name registrants or foreign domain name registrars or registries, issues which may not necessarily be resolved simply by requiring that domain name registrants consent to jurisdiction.(17) Within the United States, such jurisdictional disputes have been extensive(18), and have already had international ramifications.(19)

Disputes between parties from different countries regarding rights in cyberspace -- which may require applying dispute resolution policies of registrars who may, in turn, be domiciled in yet other countries -- will present difficult conflicts of law questions as well.(20) Extra-territorial enforcement of judgments won in the U.S. or abroad will also raise practical and procedural concerns.(21)
 

Although the CORE proposal acknowledges the possibility of litigation outside its preferred dispute resolution system,(22) the proposal does not assess whether concerns over the substantive law applied -- or the accountability of the CORE arbitrators themselves -- may in fact encourage international litigation. The White Paper acknowledges the potential for jurisdictional problems but expressly declines to attempt to resolve such questions(23) apart from a suggestion requiring domain name registrants to consent to alternative dispute resolution mechanisms for cases of cyberpiracy and a recommendation that domain name holders submit to the jurisdiction of courts where the relevant registries or registrars are located to resolve domain name disputes.(24) Because the White Paper also recommends limiting mandatory alternative dispute resolution to cases of cybersquatting -- not disputes between parties with legitimate competing interests in a name -- and because the White Paper does not attempt to address broader questions of infringement on the internet,(25) domain name disputes between legitimate business and infringement suits generally may be expected to generate difficult questions about international jurisdiction and service of process, conflicts of laws, and enforcement of foreign judgments.
 

Neither CORE nor the not-for-profit corporation the White Paper proposes could prohibit suits in U.S. federal courts by aggrieved trademark owners against foreign domain name registrants for direct infringement -- or, quite possibly against foreign-based registrars or registries for contributory infringement. Under U.S. law and the extra-territorial reach of the Lanham Act, such suits may be maintained against foreign parties upon a showing of substantial impact on U.S. commerce.(26)

Such suits similarly could be pursued abroad against U.S. domain name owners or U.S.-based domain name registrars or registries. U.S. entities thus may be required to defend abroad their rights in cyberspace. U.S. courts will also be asked to enforce judgments entered abroad against U.S. domiciliaries.
 

A geographically-based domain name system may be no panacea. However, it would likely engender fewer international conflicts and could easily incorporate a domestic alternative dispute resolution process. Where disputes do arise, they could be resolved under the domestic laws of each respective country, without extensive conflicts analyses. There would be less need for extraterritorial service of process - and no need for extraterritorial service of process if registration within any national top level domain required appointment of a domestic agent for service of process or consent to jurisdiction.
 

4. Advancing The Public Interest
 

The internet community is rightly covetous of the monopoly power and financial status enjoyed by Network Solutions as the exclusive registry of gTLD's. However, the great eagerness to create competition in the registry of domain names has not been accompanied by a sufficiently clear acknowledgment of the essentially public, quasi-governmental, function of domain name registration. The CORE proposal notes that the internet must be administered as a public trust,(27) but specifies no duties that follow from the trusteeship. The NTIA Green Paper did not address the duty, if any, registrars or registries may owe the public generally, and specifically disavowed any public duty domain name registrars owe to trademark owners. Indeed, it suggested without analysis that there is no such duty.(28) The White Paper does not directly address the issue.
 

Internet service providers have not been immune from liability for contributory copyright infringement(29) or defamation.(30) The Lanham Act likewise recognizes a right of action for contributory infringement(31). Superficially, at least, there should be no reason that domain name registrars, which in their private capacity enjoy income from registering domain names, should be immune from suit for public injury if they facilitate acts of trademark infringement or if they fail to protect adequately the legal and proprietary interests of domain name owners.
 

Network Solutions, which has been named in many infringement suits,(32) implicitly acknowledges this duty by requiring new domain name applicants to indemnify it from liability.(33) For the domain name registry system to be improved, not simply transitioned from Network Solutions to new registrars or registries, it must become more fully accountable, and the public duties of private registrars and registries must be recognized explicitly and adhered to faithfully. Within a national domain name system, each country can determine the extent to which registrars or registries are accountable to the communities they serve.
 

Although Network Solutions has been sued many times, courts thus far have declined to recognize a registrar's duty to take any particular affirmative steps to safeguard the interests of trademark owners. More than one court has declined to find Network Solutions liable for direct or contributory infringement for registering a domain name identical to the plaintiff's mark.(34) However, whether the law in the United States should be changed or requires reinterpretation, or whether a different standard should be applied in different countries is a matter of local law.
 

Conclusion
 

Rather than hastily establish broadly defined new generic top-level domains that must be administered internationally, as currently proposed, already-existing top level country domains such as ".us" should be further developed. Such national domains can be administered in harmony with territorial trademark law. Rather than herding all domain name applicants into international competition for rights in any given domain name, where the likelihood of conflict can only be exacerbated, a narrower national model would help minimize such disputes. Moreover, where disputes cannot be resolved without litigation, a national model assures that courts may apply domestic law, without untangling a skein of questions regarding extra-territorial service of process, international conflicts of laws and international enforcement of judgments. Introduction of desired competition in the provision of domain name registry services can be promoted as easily under a national as an international model.
 

The existing top level domain ".com" can continue to accommodate internet users seeking borderless identities. Although the addition of other similar international domains ultimately may be necessary, they are not needed now if the goal is simply to add competition in the business of registering domain names with the least harmful impact on trademark owners and legitimate businesses engaged in commerce on the internet. To achieve this desired goal, a national registry system is the plain choice.

###

From: <haywood.torrence@bellatlantic.COM>
To: "usdomain(a)ntia.doc.gov" <usdomain@ntia.doc.gov>
Date: 10/5/98 4:27pm
Subject: Comments of Bell Atlantic Corporation on RFC on the Enhancem
 
 

On behalf of Bell Atlantic Corporation, I am pleased to submit herewith
comments on the NTIA's Request for Comments on the Enhancement of the .us
Domain Space. These comments are prepared and submitted in Microsoft Word
format (Version 6.0/95). A hard copy of these comments will be mailed to the
Department today.
 

Haywood Torrence, Jr.
 
 

DEPARTMENT OF COMMERCE
 
NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION
 
Comments of
 
Bell Atlantic Corporation
on

Request for Comments on the Enhancement of the .us Domain Space

(Docket No. 980212036-8172-03)
5 October 1998
DEPARTMENT OF COMMERCE
NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION
Request for Comments on the Enhancement of the .us Domain Space
(Docket No. 980212036-8172-03)
Comments of Bell Atlantic Corporation
 

Introduction and Fundamental Principles

Bell Atlantic Corporation is pleased to respond to the NTIA's request for comments on the future expansion and administration of the .us domain space. The .us domain space represents a resource heretofore essentially untapped for commercial purposes. The reasons for this are many and varied: the popularity of, and cachet carried by, the so-called "generic top level domains" (or "gTLDs") not associated with a particular country; the .us domain's use of an arcane geographic taxonomy for domain name assignment; a belief by some that registration under .us was open only to public entities. Whatever the reasons, what is true is that the .us domain space has been starkly unsuccessful in attracting registrants, commercial or otherwise. (35)

Heretofore, the US Domain Registry at the Information Sciences Institute of the University of Southern California (ISI) has administered the .us domain space, under the supervision of the Internet Assigned Numbers Authority (IANA). Clearly, this arrangement cannot continue in view of the decision of the United States government to internationalize control of IANA and its functions. A new arrangement for administration of this domain space is required.

We believe that the need to transfer the .us domain name administration to a new entity presents an opportunity to begin a thorough consideration of how best to make use of this resource. It offers the chance to explore entirely new, innovative domain name assignment approaches that can avoid the problems that have plagued the gTLD domain name assignment system - and especially the problem of trademark infringement by domain names. If, however, the United States rushes headlong into a restructuring of the .us domain that substantially adopts the approach used by the gTLD system, it will also incorporate all of the problems of that system as well - and squander this unique opportunity.

Thus, while Bell Atlantic supports the concept of a restructured .us domain space, we believe that restructuring should proceed only after an exploration of the widest possible array of possible approaches. And we believe that, in all events, two important principles must be reflected in any proposals put forward with regard to the .us domain space:

n Given that there is an inextricable link between the assignment of domain names and the rights of trademark holders, any proposal to revamp the .us domain space to make it more commercially viable must incorporate scrupulous protections for the property rights of trademark holders.

n Second, implementation of any proposal must proceed with due consideration for the rights and the investments of those registrants currently utilizing the .us domain space.

Responses to Specific Questions

Comments on Question 1

The .us domain name space has exhibited sluggish growth, when compared with the growth pattern of other Internet top level domains. This fact can be traced, in part, to the .us domain's taxonomic structure for domain name assignments. When that structure was established in an Internet Request for Comment (RFC), RFC 1480, the nature of the Internet, and the scale and scope of its usage, was vastly different from what it is today. There was essentially no attention given to how the domain naming regime would impact the commercial potential of that space, nor was making the Internet easier to use for end users a major objective.(36) The RFC put into place a geographical organizational principle for that space that is both conceptually and practically at odds with the commercial paradigm that predominates the Internet - that of a global market place.

A decision to move forward with a non-geographical domain name system will necessitate changes to the policies established in RFC 1480. These changes should not be accomplished by the usual process of publication of a new RFC, however. IANA - soon to be placed under international control - supervises the RFC process. Establishing policy for the .us domain on a going forward basis cannot be the province of such an organization. Rather, policy establishment for the .us domain must be done by a United States entity, or of the United States government.

There are many entities that utilize the existing naming system for identifying themselves on the Internet. No change to the current system should be implemented that would disruptively "dispossess" current users of their ability to use the geographical system. Thus, the existing domain name structure will need to be "grandfathered" for some indefinite period of time to permit an orderly transition to any new domain name structure for existing users.

Comments on Question 2

Bell Atlantic believes that, for the present, a governmental entity will need to supervise the .us domain space. While a private sector approach may be possible at some point in the future, as a practical matter no appropriate private sector entity exists at the present time. Inevitably, therefore, the government will probably need to exercise supervisory control over the administration of domain names, at least as an interim measure. Given the strong nexus between trademarks and domain names, we believe it important that the Patent and Trademark Office should play a substantial role in the domain's policy direction, if not be assigned responsibility for the domain's administration. We also support the idea of an advisory group from the private sector, with substantial representation from trademark groups, that could provide input on domain name policy. Such a body would help to avoid the difficulties and disputes that have plagued the administration of second level domains within the gTLDs.

On the administrative side, it would probably be appropriate to contract the responsibility for the .us domain space registry to a single company or organization. That entity would operate the registry for the .us domain space, ensuring a smoothing functioning system of name assignment. This approach has several advantages: it would establish help to ensure the integrity of the database by having a single entity responsible for its maintenance; it would require substantially less country code administrator supervision than would a system of multiple registries; and it should virtually eliminate inadvertent errors, such as duplicative name assignments, that could occur with multiple registries. This would not preclude, of course, multiple registrars for the .us domain system, operating on a competitive basis as is proposed for the gTLD system.(37)

Clearly, the unfettered "first-come, first served" system, such as exists now in the gTLDs would also probably engender the same "race to the registrar," "cybersquatting," inefficient use of the domain name resource, and other problems associated with the gTLD system. For this reason, Bell Atlantic urges that modification of the .us domain space proceed with great care, and with a willingness to consider the widest possible array of new approaches, and not merely emulate this flawed system. One approach might be to create a "famous marks" registry database against which any registration in the .us domain system would have to be checked prior to issuance of a domain name. Bell Atlantic wants to emphasize that it is not wedded to any specific approach; it is, however, extremely committed to the proposition that the trademark infringement problems associated with the gTLD be addressed, ab initio, in any effort to redesign the .us domain space.

Comments on Question 3

Bell Atlantic does not believe that the creation of industry-specific (or "zoned") second-level domains has substantial merit. Such a system would simply recreate the problem of trademark dilution that is associated with the gTLD system today: rather than occurring in second level domains, in the case of a "zoned" .us domain the problems would occur with names at the third level domains. For different reasons, the concept of "zoning" of domain name space for content purposes also requires close scrutiny. Although some argue that such "zoning" has merit, particularly as regards segregation of content harmful to minors, important countervailing policy (and possibly constitutional) considerations must be weighed before the United States creates a precedent for content-based zoning on the Internet. On balance, we believe these considerations outweigh the idea of creating content-based "zones" at the present time.

Comments on Questions 4, 5 and 6

For the reasons already set out, we do not think that recreation of the gTLD structure (or a similar structure) at the second level of the .us domain space would be helpful. Indeed such an approach would inevitably give rise to problems similar to the problems with regard to trademark infringement already associated with that system. Moreover, it would preclude the opportunity to develop novel, creative ways for locating information on the Internet.

The argument most often advanced for, in effect, overlaying something akin to the existing gTLD taxonomy on top of the .us domain is a purported "scarcity" of second-level domain names. Although the scarcity argument has frequently been put forward as a basis putting into effect this "quick fix" approach to enhancement of the .us domain, there is little, if any, empirical support for this assertion. Indeed, the ever accelerating numbers of registrations under the gTLD regime would seem to demonstrate just the opposite - that there is no name shortage.

The scarcity rationale is further undercut by the significant likelihood that the efforts underway to create a new management structure for the gTLD regime will result in the creation of a number of new gTLDs. Thus, any alleged scarcity will shortly be substantially ameliorated. There is, therefore, no compelling reason for the United States to squander an opportunity by rushing to impose a new system, based on existing paradigms, without considering entirely new options.

Comments on Questions 7 and 8

Under the existing geographically-based system, governmental entities and officials have been delegated some of the functions traditionally associated with registrars in the gTLD system. When the move toward commercialization of the domain space (and, presumably, away from a geographical taxonomy) is completed, we do not believe that public officials should continue to play this role. (38) The operation of registries and registrars are fundamentally business undertakings. While existing arrangements should be maintained while a new system is developed, there is no reason for state governments and officials to remain so involved, when a new registration system for this space evolves. Nor do we believe, in view of the increasingly international character of the Internet, that the states should have a significant role in the making of policy for the administration of the .us domain space policy.

Comments on Question 9

Until such time as a more commercially responsive system is established, the government will probably have to fund the operation of the .us domain registry. Over time it may be possible to operate such a registry on a fee-basis, with fees paid by registrars, under a renewal (and reviewable) license from the government. Such a system probably could not go into place, however, until the opening up of the registration business to multiple registrars. Any registry license should clearly define the contents of the registry as the property of the United States government, to preclude difficulties when or if a change of registry operator becomes appropriate. Alternatively, the registry and registrar function could be operated by an agency of the United States government, even after the adoption of a new system, with fees established on a compensatory basis.

Comments on Question 10

Bell Atlantic declines to comment on specific management and allocation practices of any of the many country code domains. We do believe, however, that the country code administrator should act proactively in establishing its administrative policies for registrars, to ensure that its country code, inadvertently or otherwise, does not become a mechanism for trademark infringement by registrants. And we believe, further, that the country code administrator should be vigilant and respond decisively where it becomes apparent that any registrar is failing to adhere to such policies.

Comments on Question 11

As noted earlier, we believe that, as a practical matter, the .us domain should be administered, for the present, by the United States government, with input from the private sector, perhaps through an advisory council, as the system moves toward a more commercial focus.

Conclusion

We believe that a reinvigorated .us domain space can be an important step in the development of the Internet. And we support the idea, put forward in the Request for Comment, to make the .us domain "more attractive to commercial users." However, that reinvigoration must proceed in a way that avoids exacerbation of the already difficult issues relative to trademark infringement associated with the generic domain name system. Changes already taking place with respect to gTLDs will substantially mitigate any impetus for precipitous modifications to the .us domain space. Therefore, Bell Atlantic believes that the best way to accomplish this is to full, careful and creative examination of a wide array of options for this space.
 

Respectfully submitted,

Bell Atlantic Corporation
 
 

By:
 
 

/s/ Haywood Torrence, Jr.
Haywood Torrence, Jr.
Suite 400W
1300 I Street, N.W.
Washington DC 20005
703-336-7870

5 October 1998

###
 
 

Before the
U.S. DEPARTMENT OF COMMERCE
Washington, D.C. 20230
 
 

In the matter of ) )
REQUEST FOR COMMENTS ON THE ) Docket No. 980212036-8172-03
ENHANCEMENT OF THE .us )
DOMAIN SPACE )
 

COMMENTS OF BELLSOUTH CORPORATION
 

BellSouth Intellectual Property Corporation ("BellSouth") hereby submits comments in the above-captioned proceeding. BellSouth Corporation is an international telecommunications company that provides telecommunications, publishing and Internet access services. BellSouth has experienced problems in enforcing its trademark rights against several registrants of infringing domain names. BellSouth is therefore interested in establishing a system that would better facilitate the enforcement of our trademark rights. For the reasons set forth herein, BellSouth is of the opinion that most of the suggested enhancements to the .us domain space would adversely affect BellSouth's ability to protect its trademark rights.

I. How should the present geographic structure of .us be extended or modified? What changes should be made in RFC 1480 or the posted policies for .us?
 

The present geographic structure of the .us domain should be preserved. It serves very well for certain classes of domains (i.e., k12, state and local government) and provides a scalable solution to local business domains even though those are currently under-utilized. Any changes to the .us domain should be an addition to the existing geographic structure rather than a reorganization of it.

2. What are the benefits and costs of different options for allocating second-level domains under .us? How should the allocation of such second-level domains be decided and administered? What should be the terms of delegation?
 

If new second-level domains were to be added to the .us domain, their creation and administration should follow the model being developed for gTLD creation and administration. As suggested in our response to paragraphs 3 and 4, the questions and problems associated with the expansion of numbers and uses of various types of domain names are the same, as are the benefits and costs.

3. Specifically, should special-purpose second level domain names be created under .us? What are the benefits and costs of creating particular special-purpose domains (e.g., industry-specific, credentialing, zoning)? How should such domains be created and administered? Are there reasons to map names and other addressing and identification systems (e.g., postal addresses, telephone numbers, longitude and latitude, uniform resource numbers or others) into .us?

It is BellSouth's position that special level domain names under .us should not be created. This would present the same problems of protecting and enforcing trademark rights as those created by the addition of additional gTLDs. A single trademark owner entity falling within several .us categories would have to register in all categories in order to protect its rights. Moreover, there is no good reason to map other addressing and identification systems into the .us domain. The DNS is not a general-purpose database and should not be made into one.

4. Alternatively, should .us be treated as an unrestricted top-level domain like .com or should one or more specific second-level domains such as .co.us or .com.us be used for unrestricted assignment of domain names (as in .com)? How should unrestricted domains be administered and by who?
 

The .us domain should definitely not be unrestricted or added as a new top level domain. In order to avoid customer confusion and fraudulent practices, use of the .us domain must be restricted to domain registrants with a demonstrable connection with the U.S., such as citizenship, incorporation, etc.

A clear structure is needed to maintain the viability of the existing geographic domains. Therefore, the administration of second-level domains should be the same as or similar to the model being developed for gTLDs. A not-for-profit organization should be established to manage this with open and broad representation of the US Internet stakeholders - the equivalent of a US-specific IANA.

5. How should conflicting proposals and claims to manage or use .us domains be resolved? Who should have responsibility for coordinating policy for .us over the long term? What public oversight, if any, should be provided?
 

See responses to questions 4 and 6.

6. What rules and procedures should be used to minimize conflicts between trademarks and domain names under .us? Should this problem be treated differently at international, national, state and local levels? Should special privileges be accorded to famous trademarks, such as a right to register directly under .us or a procedure to preempt the use of the trademark in a range of sub-domains?
 

U.S. trademark law should clearly govern disputes regarding domain names under .us. Although these conflicts should be ultimately be dealt with in the courts, .us domain name registrants should be required to provide sufficient information to enable the domain name registrar to make certain basic decisions with respect to registrability and to provide trademark owners sufficient information with which to take action. Also, the domain name applicant should certify that its requested domain name does not infringe the trademark rights of others.

Famous marks should be afforded reasonable protection from infringement through use of some specially developed procedure which would allow them to apply for categorization as "famous." This would, in turn, give them priority over domain name applicants applying for the same or a similar domain name.

7. What role should states play in the allocation and registration of their respective domains? Should commercial names be permitted under states as third-level domains? Or should such third-level domains be limited to special categories such as domestic corporations or other state-licensed entities? Should states and localities operate registries and accept registrations directly? To what extent should state policies be coordinated and through what mechanisms and procedures?
 

State governments should not have any involvement in the allocation, registration or management of the state second-level domains. The .us domain has a geographic rather than political structure. Direct government control over personal and business domains within a state or locality would add too much administrative complexity and would be subject to political abuse. However, the state and local government clearly have an interest in the quality of .us domain operations within their areas and should have input into how those domains are managed. This should be factored into the allocation and registration rules developed by the .us management organization.

Unrestricted registration of third-level domains within a state domain would obscure the existing geographic hierarchy, generate public confusion and present potentially insurmountable problems for trademark owners.

8. How well has the system of delegating third-level domains (localities) to private registrars on an exclusive basis worked? How could it be improved? Should registrars be accountable to their delegated localities (just as country-code registries are accountable to national governments)? Should registrars be limited to a single jurisdiction? Should multiple competing registrars be able to register under any local, state, or special-purpose domain under .us as in the plan proposed for general Top-Level Domains?
 

The major problem with the existing system of locality registrars is lack of competition, which has lead to poor service and/or high prices for locked-in customers. The best way to resolve this would be to establish a shared registry with multiple registrars as in the gTLD plan. It is BellSouth's opinion that locality government oversight would not be effective.

9. How should the operation of the .us registry be supported? Should uniform registration (and renewal) fees be instituted? Should registrars contribute to the operation of the registry?

Shared registries should be run on a not-for-profit basis with support fees from the registrars. The registrars should be free to set prices and let competition determine the ultimate registration fees.

10. What are the best management and allocation practices for country-code domains? What practices should be emulated or avoided?
 

No response.

11. By what type of entity should .us be administered? Private, governmental or quasi-governmental? For profit or non-for-profit? What are the advantages and disadvantages of using one type of entity (private, public, for profit, not-for-profit) over the others?
 

See the responses to questions 2 and 4.

Respectfully submitted,
 

BELLSOUTH CORPORATION
 

By: _Sandra J. Evans______________________ Sandra J. Evans

Suite 1700

1155 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 249-2714
 

Its Attorney
 
 

October 5, 1998

###

From: Donald Eastlake 3rd <dee@pothole.com>
To: NTIA.NTIAHQ(usdomain)
Date: 10/5/98 11:57pm
Subject: Comments on US Domain
 

Attached are my comments on Docket No. 980212036-8172-03, Request for

Comments on the Enhancement of the .us Domain Space, in Rich Text Format

as produced by Microsoft Word. This should be readable by any recent

version of Word.
 

Thanks for the opportunity to comment,

Donald

=====================================================================

Donald E. Eastlake 3rd +1 978-287-4877(tel) dee3@torque.pothole.com

318 Acton Street +1 978-371-7148(fax)

Carlilse, MA 01741
 
 

CC: NTIADC40.SMTP40("dee3@torque.pothole.com")
 

Attn: Karen Rose

Office of International Affairs (OIA)

National Telecommunications and Information Administration (NTIA)

Room 4701

U.S. Department of Commerce

14th and Constitution Avenue, N.W.

Washington, DC 20230.
 
 

COMMENTS on Docket No. 980212036-8172-03

Request for Comments on the Enhancement of the .us Domain Space
 
 

General Comments

The .us zone needs vastly more attention than it has had heretofore.

Early on, .us worked fine. Volunteers ran registries for increasing numbers of cities and usually offered free services. But the system was never extended beyond the straightjacket of localities and a few special domains. After a while a few locality registries in .us stared to charge $5 or $10 to cover their increasing costs as there were more and more registrations. Then the make-money-fast-domain-name-fever struck and for-profit companies started snapping up registration authority for hundreds of remote localities in advance of any demand. In some cases, these companies charged fees higher than NSI gets for registering in .com!!!

You need only read the evolution of the policy announcements by the US Registrar to see the repeated and questionably effective attempts to slow this abuse. An absurdly high limit of 500 cities per registry and other high limits were imposed. Then a requirement that some contact person with the local government that approved the registrar be listed when registration authority was applied for. But since these registry companies were just out hoping for the fast buck, the latest postings by the US Registrar shows that there is a problem with fraudulent applications, fake company fronts to get around the 500 limit, listing of nonexistent or completely unknowing municipal contacts, etc.

Nevertheless, despite all of these severe problems, the July 1998 domain name survey by Network Wizards <http://www.nw.com> showed 1,302,204 computers registered in .us. That's a huge number and most of those are fourth level names, such as "host.city.xx.us", proving that it really isn't necessary for everyone in the world to be able to get a second level name.
 
 

Answers to Questions for Public Comment

How should the present geographic structure of .us be extended or modified?
 

The DNS is a very flexible structure. There is no reason to remove or modify the current geographic tree under .us but plenty of room to add a wide variety of other naming schemes below .us.
 

The existing tree uses only the two letter state codes and a small number of special labels below .us. All the other names under the current .us are third or fourth level names, an admirable use of the kind of hierarchy for which the DNS was designed. Placing locality names at the third level eliminates conflicts between localities with the same name in different states, such as the many cities named "Springfield".
 

Of course .com.us, .net.us, and .org.us should be created, at a minimum, to provide for companies and organizations to register at the national level.
 

What changes should be made in RFC 1480 or the posted policies for .us?
 

RFC 1480 is way out of date on the details. The web site at http://www.isi.edu/in-notes/usdnr is much more up to date. Of course, it only covers the current .us scheme. Any additional scheme, such as .com.us or nnnnn.ups.us (where nnnnn is a zip code) or whatever would need to be documented.
 

But even within the current scheme, much change is required. The principal of local control for locality zone must be established. Remote profit making registries should not be able to hold a towns domain captive against there will, as is no possible (because of the fear of the current private administration of law suits should they try to ever take a zone away from a registry that was granted the zone before the rules requiring local governmental approval went into effect).
 

The restriction of a registry holding no more than fifty names in one state may be reasonable but the overall limit of 500 is absurd. There is no reason for a registry not to be in the state of or in an adjacent state to any locality it serves. A maximum limit of 200 or less would be more reasonable. In the absence of local decision to the contrary, such factors as having an office open on every business day within the locality or at least a telephone number local to the locality should be taken into account. And, of course, lower fees should also be a factor.
 

2.1 What are the benefits and costs of different options for allocating second-level domains under .us?
 

Unrestricted second level delegation would destroy any realistic possibility of adding new naming schemes with appropriate second level names. All the "good" names would be snapped up. Planned and careful second level name delegation would preserve future possibilities for alternative structures.
 

2.2 How should the allocation of such second-level domains be decided and administered? What should be the terms of delegation?
 

There needs to be an authoritative administrator for .us. The FCC or the NTIA are the only reasonable choices I know about. The terms of delegation could differ greatly. A delegation to a town government could have almost no restrictions on it. A delegation of several generic second level domains to an association of registrars would need some public interest restrictions.
 

3.1 Specifically, should special-purpose second-level domains be created under .us? What are the benefits and costs of creating particular special-purpose domains (e.g., industry-specific, credentialing, zoning)? How should such domains be created and administered?
 

In general, I would say yes, if there is demand, then its is reasonable to create such second level names. The .edu is domain is a good example of a credentialed zone that has worked quite well. Such special second level domains should be restricted to credentialing for entities that are already licensed at the national level such as .bank.us. If we are talking about state licensed entities, then the special purpose domain should be under the state code, such as .beauticians.ca.us. Such domains would be created by the administrating body for .us, perhaps at the request of a state for state level. Who would administer them and under what rules should be part of the application for their creation. In most cases, there should already be a regulatory agency or industry association in existence to administer the special domain.
 

The benefits are assurance (especially after DNS security is deployed) about the entity you contact or send messages to at a domain name. The costs are mostly those involved in any "licensing" proceeding such as the granting and maintaining of a radio broadcast license.
 

3.2 Are there reasons to map names and other addressing and identification systems (e.g., postal addresses, telephone numbers, longitude and latitude, uniform resource numbers or others) into .us?
 

In some cases, there is. US postal codes are a national system and would be an appropriate part of a US Postal Service scheme of provide an email address for everyone who want one. Just add .ups.us and delegate it to the Postal service which could then, for example, set up .nnnnn.ups.us zones for each zip code, etc.
 

Telephone numbers or latitude/longitude are not particularly appropriate because they are already international systems. Thus a name tree based on them should be under .int. For example, see the IETF RFCs documenting .tpc.int.
 

I don't know what you mean by "uniform resource numbers".
 

If there is demand, there is no reason not to map any official US national system of stable names or identifiers under a second level domain name under .us. Generally the agency that administers the number or identification system would also administer the zone.
 

4.1 Alternatively, should .us be treated as an unrestricted top-level domain like .com or should one or more specific second-level domains such as .co.us or .com.us be used for unrestricted assignment of domain names (as in .com)?
 

Once you make .us "unrestricted" a the second level (presumably except for the already allocated state and special codes), you have lost forever the ability to add any new naming system that would require a multiplicity of second level names. The probability of conflict with an existing name would be too high for one of the required second level names. Thus this is any irrevocable decision only to be taken with the greatest care.
 

Thus I would advocate using .com.us, .net.us, and .org.us. However, as a compromise position, a restricted class of entity names could be allowed directly under .us. For example, purely alphabetic names at least six letters (and less than some reasonable limit) long. This would still leave plenty of room for additional special second level domains thus maintaining the freedom of the system to evolve.
 

4.2How should such unrestricted domains be administered and by whom?
 

The success of the .uk administration shows that the most efficient way is by an association of registrars. However, some government involvement may be required. Perhaps some limited role for the Patent and Trademark Office, which already has a statutory duty to judge whether a mark is obscene or the like, which might be given a brief period of time to block a name. And general oversight by the FCC or NTIA to recover from any collapse of the system would be wise.
 

5.How should conflicting proposals and claims to manage or use .us subdomains be resolved? Who should have responsibility for coordinating policy for .us over the long term? What public oversight, if any, should be provided?
 

The US Government, probably via the FCC or the NTIA, should have the long term responsibility for coordinating .us policy. I believe the FCC procedures, as adapted to this case, would provide adequate public oversight.
 

Conflicts would be managed in different ways in different parts of the name tree. If there is a conflict concerning a locality, that locality should be permitted to make the judgement. But if there is no organized government for the locality or it chooses not to act, then the governmental .us administrator needs to step in. It is not clear that this is much different from two applicants for a radio broadcasting license. If there were a conflict between two companies for a name in .com.us, the US courts provide the best mechanism for balancing trademark claims and the like.
 

6.What rules and procedures should be used to minimize conflicts between trademarks and domain names under .us? Should this problem be treated differently at international, national, state, and local levels? Should special privileges be accorded to famous trademarks, such as a right to register directly under .us or a procedure to preempt the use of the trademark in a range of subdomains?
 

Trademarks are, under current international law, creatures of nation states. Thus the present a very difficult problem for global domains such as .com.
 

However; there is very little problem handling this under .us as it's all clearly under the jurisdiction of US courts including, where appropriate, state courts. There is no reason that any special procedures are needed. It's no different from starting a business, forming a corporation, naming a product, or any of the other millions of naming decisions that are made all the time. The constant attempts by the big guys to evade the excellent judgement of the US court system and administratively crush small users trying to make non-infringing use of similar marks needs to stop. There is no reason for .us to copy the oppressive policies of Network Solutions in .com, etc., of giving registered trademark holders many more rights than they would ever get in court.
 

7.What role should states play in the allocation and registration of their respective subdomains? Should commercial names be permitted under states as third-level domains? Or should such third-level domains be limited to special categories such as domestic corporations or other state-licensed entities? Should states and localities operate registries and accept registrations directly? To what extent should state policies be coordinated and through what mechanisms and procedures?
 

It is necessary to have a substantial amount of national coordination in order to have any kind of sensible and understandable naming system. Nevertheless, states should be given some freedom to add special second level domains under their state level names. In addition, it should be pointed out that localities, such as cities, towns, counties, etc., are legally just creations of their state. Thus, if states which to do so, as the elected representatives of their citizens, they must be given the authority to select registries (including that state itself if it so chooses) for any or all localities within the state as well as for state level agencies and the like.
 

Locality or agency registries should either have appropriate governmental approval for their policies or else conform to national standard policies designed to promote the public convenience and necessity through stable and affordable domain name services.
 

8.How well has the system of delegating third-level domains (localities) to private registrars on an exclusive basis worked? How could it be improved? Should registrars be accountable to their delegated localities (just as country-code registries are accountable to national governments)? Should registrars be limited to a single jurisdiction? Should multiple competing registrars be able to register under any local, state, or special-purpose domain under .us as in the plan proposed for generic Top-Level Domains?

See my introductory remarks above. It used to work quite well. Now it needs change.
 

Lock in of localities to old legacy registries from before the .us administrator imposed the local government approval requirement must be broken. In general, a system that provides for local accountability the localities that wish to assume it and national regulation in the public interest otherwise is the way to go. There is no a priori reason to restrict registrar to a single jurisdiction. For many small communities, a local volunteer providing registry and registrar services free of charge for reasonable local requests works fine. For very large localities, such as perhaps New York City, a system with a registry and multiple registrars, such as has been proposed for generic Top-Level Domains, might make sense, but only above a significant size threshold.
 

9.How should the operation of the .us registry be supported? Should uniform registration (and renewal) fees be instituted? Should registrars contribute to the operation of the registry?
 

I believe that .us should be self supporting in that fees assessed against holders of subdomains below .us should cover the costs. However, I would be strongly opposed to "uniform" fees. For example, it makes little sense to charge the same fee to a person who provides free local domain names in a rural community (*.podunk.nd.us), a for profit company that provides domain names in a major city for a fee (*.metropolis.ny.us), the US Postal Service if it has .ups.us, a sovereign Indian nation under .nsn.us, or the hypothetical operator of .com.us.
 

The setting of fair fees might be a complex matter, but it is the sort of thing the FCC, for example, is used to doing.

10.What are best management and allocation practices for country-code domains? What practices should be emulated or avoided?
 

I am not sure that the "best" practices are yet known. For open allocation of names at a level, the association of registrar governed model of .uk is very successful. On the other hand, just turning over the country code to a monopoly state communications entity, such as in .ae, leads to high prices, limited use, and capricious allocation. For subdivision down to localities, the current .us tree is enormously successful, with over 1.3 million computers registered.
 

The answer is to put all the best known methods under .us and leave room for additional experimentation. The hierarchical nature of DNS makes it pretty easy to do this if you avoid early over-allocation too high in the tree.
 

11. By what type of entity should .us be administered? Private, governmental, or quasi-governmental? For profit or not-for-profit? What are the advantages and disadvantages of using one type of entity (private, public, for profit, not-for-profit) over the others?
 

There is only one .us domain and it represent the United States of America whose government must have ultimate authority over it. Only a US governmental or quasi-governmental agency makes sense for top level administration. The FCC and the NTIA are the only agencies of which I am aware that appear appropriate.
 

If only a limited number of second level domains are added under .us, so that, for example, commercial entities are under .com.us, then the actual operation of the servers for the .us domain, even if there were a dozen of them scattered around the US, would be a sufficiently minor task that it could easily be done directly by the administering agency. On the other hand, if huge numbers of names are allowed at the second level under .us, it would probably be necessary for a contractor to operate it, with all the attendant complexities of contracting, contractor transition, etc.
 

A for profit group makes no sense. To subjugate the established place in the global DNS tree for each US state, Indian nation, and locality to a private for profit overseer is just obscene. There is plenty of room for profit below the .us level.
 

A private entity, such as the de facto administrator has been, is problematic. When the rules need to change, such as the change to permit local governmental input, old grantees many need to have their grants unilaterally changed. It's just like when the broadcast spectrum is re-allocated so a station has to change. A private administrator just doesn't have the needed clout to resist law suits by those who see the status quo as to their advantage.
 
 

Summary Recommendations:

Every review of .us that I am aware of has recommended that second level domains such as .com.us, .net.us, .org.us, etc., be created. This seems like a minimal expansion and could be run by an appropriate contractor under an association of registrars like the highly successful .uk system. Since this is USA only, it would be reasonable to require that limited free registration services in org.us be provided to 501(c)(3) organizations or the like, supported by profits from .com.us.

There is, of course, no reason to remove the existing geographic system. To do so would violate the first principle of DNS utility, that it provides stable cyberspace identifies.

In the United States, local governments are creatures of the states they are in. Therefore, where a state wishes to take on the responsibility and has an appropriate mechanism in place, it should be able to designate and regulate registries for its cities, counties, towns, etc. However, for coherence and interoperability, overall structure of the .us domain must remain a federal responsibility.

Until a state takes such responsibility, the cities, counties, and towns within that state who wish to must be able to designate and regulate their registrar or perform this duty themselves if they have an appropriate mechanism in place. Residents must no longer be stuck with a greedy for-profit registry thousands of miles away even if that registry does try to bribe the local government by providing them free service while jacking up fees for the ordinary fellow.

Where neither that state nor the locality has officially designated a registry, there needs to be a federal system for selecting and regulating city/county/town level registrars. This system should promote the public convenience and necessity through stable and inexpensive local registrars. For example, in cases of conflict, a registrar with a place of business open to the public within the municipality should be preferred to one thousands of miles away.

There should be a system whereby complaints are promptly handled via open proceedings. There should be substantially greater oversight over .us registries than there has been thus far.

Although not asked, I should mention that there is no reason to eliminate .mil or .gov (or move them under .us). First of all, to do so violates the first principle of DNS utility, that it provides stable cyberspace identities. Hundreds of thousands of web links, email address book entries, etc., would be broken by such a change. Second of all, the existence of three top level domains (TLDs) for the United States of America, while other nations have one, is entirely consistent with international diplomatic usage. At every Olympics, thee flags are equally honored: the host nation flag, the Olympic flag, and the Greek flag, because Greece originated the Olympics. The Universal Postal Union requires that every nation identify itself on all of its stamps that are used in international post except Great Britain because it originated postage stamps. As the originator of the Internet, it is quite natural that US has, due to historical accident, a couple of additional national TLDs.

The .us domain has been almost hidden. A www.us web page should be set up as soon as possible, so people can at least find it without wandering through multiple links off of isi.edu. While its probably way too late for .us to have a major impact on .com, a little marketing might make the already successful .us, with over 1.3 million computers in it, a much bigger success.

Implementing the recommendations above would require substantial staffing and funding. It should aim to become self-funding by imposing fees on registries. To the extent possible, fees should be imposed only on registries that charge and should be avoided for registries that provide general free registration to those in their locality.

###
 

From: <HUCUP@aol.com>
To: NTIA.NTIAHQ(usdomain)
Date: 10/5/98 10:39am
Subject: Comments on Enhancement of the .us Domain Space
 

Please find attached comments for your committee.

Sincerely yours,

Rodney D. Green

Director

Howard University Center for Urban Progress

(202) 806-9558

(202) 806-9566

email: alaec06@aol.com
 

Howard University
Center for Urban Progress

2006 Georgia Avenue, NW-LL

Washington, DC 20001
Tel: 202 806 9558

Fax: 202 806 9566

e-mail:hucup@aol.com
 

Comments on Proposed Changes in

Domain Name System Management
 
Submitted to the National Telecommunication
and Information Administration
 
Dr. Mary K. Perkins
Howard University
 

Question 3. Specifically, should special-purpose second-level domains be created under .us? What are the benefits and costs of creating particular special-purpose domains (e.g., industry-specific, credentialing, zoning)? How should such domains be created and administered? Are there reasons to map names and other addressing and identification systems (e.g., postal addresses, telephone numbers, longitude and latitude, uniform resource numbers or others) into .us?
 

Answer. The Howard University Center for Urban Progress (CUP) is pleased to offer the following comments in response to the National Telecommunications and Information Administration's (NTIA) request for public comment on the .us Country Code Top Level Domain (ccTLD). CUP is a research group at Howard University(39) that specializes in analyzing the impact of major policy decisions on minorities and the urban community. CUP is concerned about the growing divide between income groups and races with regard to access to the Internet. In this respect, CUP is encouraged to learn that the United States Postal Service (USPS) has indicated an interest in coordinating the administration of the .us ccTLD. Although the suggestion raises several important issues (discussed below), it also holds out the promise of developing an infrastructure capable of providing each U.S. citizen with an e-mail address, and in that way furthering the goal of universal access to the Internet.

Country Code Top Level Domain Names

Although every Internet computer is identified by number, users have found it convenient to identify computers by name. Such alphabetical identifiers are referred to as domain names. They are structured hierarchically, with Top Level Domains divided into second-level domains, and so on. In the United States, users are probably more familiar with "flat" TLDs like .com and .org than with Country Code TLDs. U.S. companies and organizations have preferred to register domain names without a country reference, largely because of the relative complexity of geographically oriented domain names (such as ccTLDs). For instance, a large company with a home office in New York City might prefer the simplicity of company.com to company.new-york.ny.us, especially if the company has locations in many places other than New York. Hence, the .us domain name is used primarily by federal and state agencies.

Recently, however, conflicts have arisen over the assignment of generic TLDs. For instance, several companies might wish to register what is essentially the same name, if only there were some way to include unique identifiers. When the Department of Commerce issued a Request for Comments on Domain Name System administration (July of 1997), many commentors suggested that expanding the commercial use of the .us space would reduce pressure for new generic TLDs. In response, the Department of Commerce is now seeking public comments on how to manage the .us TLD.

The Digital Divide

The exponential growth of Internet usage is well established, and there is near universal enthusiasm for the expected impact upon society of expanded electronic services of all kinds. Important policy questions are presented, however, by the fact that current access to the Internet varies dramatically by income group and by racial/ethnic classification. According to a recent survey,(40) income goes the furthest to explain differences in home computer ownership, but white students are far more likely to have Internet access than black students, even within the same income group. If present trends continue, and unless specific policy decisions are taken to provide more general access to electronic services, the much vaunted society-transforming effects of the Internet are more likely to be felt by affluent white Americans. This perspective should inform policy debates that bear upon Internet access.

The Postal Service's Proposal

In its comments to the NTIA (8/17/98), the USPS offered to coordinate the organization, development and administration of the .us ccTLD. CUP supports this idea on the following grounds.

I. The proposal facilitates the provision of an e-mail address to all citizens. The Postal Service would appear to be uniquely situated to integrate e-mail and physical address systems. Individuals, companies and organizations could register domain names through the USPS that allows a mapping of e-mail addresses to geographic location. Registration, especially for individuals, would be facilitated by the fact that most people have easy access to a Post Office. Once that is done, e-mail messages that are addressed to individuals without computers could be delivered cheaply via that USPS's delivery network.

II. Although universal e-mail addresses do not in themselves provide universal access to the Internet, they are an important step in that direction.(41) The recipient of an e-mail could "reply" via a terminal located at a library, or possibly at a Post Office. The possibility of electronic PO Boxes suggests itself.

III. The security of e-mail would be enhanced. From the electronic entry point (a postal Internet computer) to arrival at the recipient's computer, security could be guaranteed by an encryption system or by intranet style firewalls. The protection of First Class mail is a well-established practice of the USPS. In cases where the final delivery of mail is accomplished by a postal carrier, the security of the message would be guaranteed by the usual means.

Portability

One objection that has been raised to the postal plan stems from the recent promise that telephone numbers will soon be portable. In other words, you may soon be able to keep your phone number even if you move to another state. It may therefore seem like tying e-mail addresses to physical locations is taking a step backward. However, there is nothing in the postal plan that keeps e-mail addresses from being portable. Even with e-mail addresses ultimately tied to physical addresses, second level domains need not literally be zip codes or street addresses. They could be social security numbers or any other set of characters, so long as a look-up table exists to tie them to geographic addresses. If you were to move, your second level domain name would stay the same, but get pointed to a new physical address. It would appear that such a system would face far less severe portability problems than those faced, and apparently overcome, by telephone systems.

Spam

Would the enhanced ability to reach the mailbox via e-mail increase the amount of "junkmail?" And worse, would it reduce the degree to which advertisements are targeted? It all depends on the price. The wide dispersion of (unwanted) messages over the Internet is called "spam;" it results from the absence of per-recipient fees on the Internet. If forwarding e-mail via physical delivery were free, then spam would become physical junkmail. But why should it be free? The Postal Service would need to recover not only the delivery service cost, but the cost of processing and printing the electronic message as well. The specific procedures for charging the mailer would need to be worked out, but the availability of physical delivery would not necessarily increase the quantity of unwanted admail.

Privacy

Some have argued that postal employees could intercept e-mail as it is being printed and read it. Clearly, security considerations, as well as cost, would need to bear upon the choice of equipment and procedures for converting messages from digital form to paper.

Remaining Issues

Assuming the Postal Service ultimately gets the nod, there are many issues that need to be researched.

I. How would the postage be handled?

II. What is the best way to process electronic messages for physical delivery?

III. What will be the impact on the Postal Service of increasing its delivery volumes, while simultaneously shrinking the need for labor and capital expenditures on transportation and mail processing?

IV. In what other ways could postal initiatives, perhaps in combination with management of ccTLDs, contribute to the longterm goal of increasing access to the Internet?(42)

Conclusion

The Postal Service's suggestion to administer the development of the .us ccTLD, and to structure second-level domains so as to map e-mail addresses onto physical locations, is an interesting idea that deserves to be developed further. In the view of CUP, an important advantage of this approach is that it facilitates access to electronic services by those who do not own computers.

Question 9. How should the operation of the .us registry be supported? Should uniform registration (and renewal) fees be instituted? Should registrars contribute to the operation of the registry?

Answer. The Postal Service could reasonably charge a registration fee designed to cover the, minimal, cost of administering the program, although subsidy plans by the federal government would be a reasonable complementary program to insure universality of services.

Question 11. By what type of entity should .us be administered? Private, governmental, or quasi-governmental? For profit or not-for-profit? What are the advantages and disadvantages of using one type of entity (private, public, for profit, not-for-profit) over the others?

Answer. These comments have sought to focus some attention upon the important social question of Internet access. Indeed, it would be inappropriate for policy decision such as this one to be made on the basis of technical comments alone. With regard to Internet access, the interests of low-income and minority groups are more likely to be served by a governmental or quasi-governmental entity, such as USPS, than by a private corporation.

###
 

From: Mark Luker <mluker@educause.edu>

To: "'usdomain@ntia.doc.gov'" <usdomain@ntia.doc.gov>

Date: 10/5/98 10:52pm

Subject: EDUCAUSE comments on .us in Word97
 

October 5, 1998
 

EDUCAUSE Comments on Enhancement of the .us Domain Space
 

Background.
 

This document is submitted in response to National Telecommunications and Information Administration docket 980212036-8172-03, which invites public comment on the future use and management of the .us domain space of the Internet.
 

EDUCAUSE is an association of more than 1500 colleges and universities in the United States with primary interests and programs in the field of information technology for research and education. This community has pioneered the use of the Internet, owns and operates more than four million Internet hosts, and holds domain names in both .edu and .us. EDUCAUSE has previously submitted comments in the NTIA proceeding on Technical Management of Internet Names and Addresses, whose substance is contained in the "Green Paper" of 2/20/98 and the subsequent "White Paper" of 6/10/98. In its previous comments, EDUCAUSE (the successor organization as of 7/1/98 to Educom) endorsed the principles and goals of the Green Paper and made specific suggestions relating to the management of the registry and registration functions for domain names. In this response, we submit a number of general recommendations, followed by responses to those parts of the questions for public comment which are of primary interest to our members.
 

General Recommendations.
 

1. The basic policy direction for the use of the .us domain should continue to be provided by the federal government. This is not only consistent with the manner in which ccGTDs are managed by other national governments, but it recognizes that the use of the national identifier is intrinsically a governmental function. On a day to day basis, the management and operation of .us can be subcontracted or delegated by the government in any of a number of ways. For instance, the operation of .gov is subcontracted by the General Services Administration to a private sector company.
 

2. The present policy restrictions and conventions which make .us primarily a locality based system should be substantially modified or eliminated. The locality convention leads many people to believe that a state and local domain name host is in fact physically located in the location of the name. This is not necessarily true and is rapidly becoming less true as mail and web hosting services expand their support of a variety of domain names and TLDs. The Internet domain name space is NOT geographically specific and never has been. To the extent that geographic location information becomes useful in the provision of Internet services, such information can be rapidly and accurately derived from sources such as the satellite based GPS system. There not only is no need to preserve the geographic conventions in .us, but to do so would substantially inhibit the desired expansion of use of the name space. However, those name holders in .us for whom the locality designation is valuable should be permitted to continue to use it in that manner.
 

3. In order to promote the goals of open competition presented in the Green Paper, the future management of .us should conform to the separation of registry and registration functions described in the Green Paper. Unless there are persuasive national policy considerations to the contrary, the registry function and registration function of .us should follow policies established by the new domain names non-profit corporation.
 

Comments on Specific Questions
 

Q. What rules and procedures should be used to minimize conflicts between trademarks and domain names under .us?

A. WIPO is actively engaged in a normalization and rationalization process for Internet names and trademarks. A dispute resolution procedure is a specific goal of the present consensus process. A representative of .us should actively participate in this work, and future policy for .us should observe the conventions adopted by the WIPO parties unless there are persuasive U.S. national policies which dictate otherwise.
 

Q. What role should states play in the allocation and registration of their respective subdomains?

A. It does not appear cost effective for individual states to operate a state level registry and registration function. However, there are unique needs of state, regional, and local government agencies and entities that may be represented best by a single registry devoted to governmental interests in the .us domain. This could be administered through an entity such as the National Governor's Association, the League of Cities or an equivalent membership organization.
 

Q. How should the operation of the .us registry be supported?

A. Within the same general framework of fees as is established for the gTLDs by the new domain name corporation.
 

Q. By what type of entity should .us be administered?

A. Consistent with its previous comments on the Green Paper, EDUCAUSE believes that the public trust aspects of the TLDs, including the ccTLDs, require a non-profit entity to manage and administer policy for the .us domain. All operational aspects, including databases and registration functions, can and should be awarded to one or more qualified bidders through a competitive process.
 

Sincerely yours,
 

Mark Luker, Vice President
 

Mark Luker, VP EDUCAUSE; Suite 600, 1112 16th St. NW; Wash DC 20036

202-872-4200 x 5351; 202-872-4318 fax; mluker@educause.edu

###
 
 

From: "Peter R. Rony" <rony@usit.net>

To: NTIA.NTIAHQ(usdomain)

Date: 10/5/98 10:09pm

Subject: Response to NTIA RFC on the enhancement of the .US domain space
 

Response to the National Telecommunications Administration Request for Comments on the enhancement of the .us Domain Space
 

By:
 

Peter R. Rony, Ph.D., 1501 Highland Circle, Blacksburg, VA 24060-5668
 

October 5, 1998
 

INTRODUCTION
 

The purpose of this letter is to (a) support the response of the A-TCPIP and its working group, the Domain Rights Coalition (DNRC), dated October 5, 1998, and (b) to provide additional comments.
 

THE NEED TO MAP THE 42 INTERNATIONAL TRADEMARK CLASSES FOR GOODS AND SERVICES
 

I suggest that the NTIA give serious consideration to the mapping of the 42 international trademark classes to second-level domains (SLDs) under the .US top-level domain. For the convenience of readers of this message, I list the 42 classes as follows:
 

Goods
 

Class 1 (Chemicals)

Class 2 (Paints)

Class 3 (Cosmetics and cleaning preparations)

Class 4 (Lubricants and fuels)

Class 5 (Pharmaceuticals)

Class 6 (Metal goods)

Class 7 (Machinery)

Class 8 (Hand tools)

Class 9 (Electrical and scientific apparatus)

Class 10 (Medical apparatus)

Class 11 (Environmental control apparatus)

Class 12 (Vehicles)

Class 13 (Firearms)

Class 14 (Jewelry)

Class 15 (Musical instruments)

Class 16 (Paper goods and printed matter)

Class 17 (Rubber goods)

Class 18 (Leather goods)

Class 19 (Non-metallic building materials)

Class 20 (Furniture and articles not otherwise classified)

Class 21 (Housewares and glass)

Class 22 (Cordage and fibers)

Class 23 (Yarns and threads)

Class 24 (Fabrics)

Class 25 (Clothing)

Class 26 (Fancy goods)

Class 27 (Floor coverings)

Class 28 (Toys and sporting goods)

Class 29 (Meats and processed foods)

Class 30 (Staple foods)

Class 31 (Natural agricultural products)

Class 32 (Light beverages)

Class 33 (Wines and spirits)

Class 34 (Smokers' articles)
 

Services
 

Class 35 (Advertising and business services)

Class 36 (Insurance and financial services)

Class 37 (Construction and repair services)

Class 38 (Communication services)

Class 39 (Transportation and storage services)

Class 40 (Material treatment services)

Class 41 (Education and entertainment services)

Class 42 (Miscellaneous services)
 

I believe that these 42 classes could serve as the basis of 42 SLDs underneath the .US top-level domain. As examples, please consider:
 

CHEM.US Chemicals

PAINT.US Paints

MACH.US Machinery

METAL.US Metals

TOOL.US Tools

VEHIC.US Vehicles

WINE.US Wines and spirits

COMM.US Communication Services
 

MY PERSONAL SUPPORT FOR THE A-TCPIP AND DNRC RESPONSE TO NTIA
 

Comments (1), (2), and (3) are useful contributions to the discussion ofthe .US space.
 

I agree that ".US should permit multiple second-level domains (SLDs)", allowing new registries and registrars to enter the market.
 

I personally support the idea of SLDs such as,
 

COM.US commercial

ORG.US not-for-profit organizations

NET.US networking organizations

EDU.US educational organizations

MIL.US military organizations in the United States

GOV.US governmental organizations in the United States
 

Since I am an individual, and not an organization, in the spirit of brevity (and because of the late date and time of this response) I will refrain from answering the eleven questions that NTIA posed.
 

Dr. Peter R. Rony

1501 Highland Circle

Blacksburg, VA 24060-5668

Phone: 540-951-2805

Email: rony@usit.net
 

Business Address:

Professor Peter R. Rony

Department of Chemical Engineering

Virginia Polytechnic Institute & State University

Blacksburg, VA 24061-0211

Phone: 540-231-7658
 

I am co-author of the June 19, 1998 book: "The Domain Name Handbook: High Stakes and Strategies in Cyberspace"

###

From: <StetsonTJH@aol.com>

To: NTIA.NTIAHQ(usdomain)

Date: 10/5/98 4:53pm

Subject: Comments on .us Domain Space
 

STETSON LAW OFFICES, P.C.

1305 Rio Grande Blvd. NW

Albuquerque, New Mexico 87104
 

October 5, 1998
 

Docket No. 980212036-8172-03
 

Karen Rose

Office of International Affairs (OIA)

National Telecommunications and Information Administration

Room 4701

U.S. Department of Commerce

14th and Constitution Avenue, NW

Washington, DC 20230
 

Dear Ms. Rose:
 

We represent the Campo Environmental Protection Agency ("CEPA"), an agency of the Campo Band of Mission Indians. The Campo Band is a federally recognized Indian tribe located in the eastern section of San Diego County. The attached WordPerfect 7.0 file contains the CEPA comments on the Enhancement of the .us Domain Space. If you have any questions please contact:
 

Michael Connolly, Director

Campo Environmental Protection Agency

36190 Church Road, Suite 4

Campo, California 91906

e-mail: Tipaay@aol.com

or
 

Timothy J. Humphrey, Sr.

Stetson Law Offices, P.C.

1305 Rio Grande Blvd. NW

Albuquerque, New Mexico 87104

e-mail: tjh@stetsonlaw.com
 

Thank you for your attention to these matters.
 

Cordially,

Timothy J. Humphrey, Sr.
 

CC: NTIADC40.SMTP40("Tipaay@aol.com")
 
 

CAMPO ENVIRONMENTAL PROTECTION AGENCY
COMMENTS ON THE ENHANCEMENT OF THE .us DOMAIN SPACE
 
 

These comments respond to the National Telecommunications and Information Administration's ("NTIA") Request for Comments ("RFC") on the Enhancement of the .us Domain Space, Docket No. 980212036-8172-03. Specifically the Campo Environmental Protection Agency ("CEPA") intends to comment on questions 1 and 3 of the "Questions for Public Comments."

As a brief background, CEPA is an agency of the Campo Band of Mission Indians, a federally recognized Indian tribe located in the eastern portion of San Diego County. Recently, CEPA applied for an Internet domain name from the Center for E-mail Technology ("CEMT"), a division of the General Service Administration, the federal entity delegated the responsibility of handling registration for use of the ".gov" extension domain names. In response to its request, CEPA was informed that, because it was not a federal agency, it could not use ".gov" in its name, but that the decision could be modified if CEPA requested a waiver and fit one of the limited number of exceptions to the policy. CEPA requested assistance in applying for a waiver, and its agent contacted CEMT for information as to why CEPA's application was rejected.

The initial contact with CEMT was unproductive at best and clearly showed that the Internet community and its administrators neither understand the unique status of Indian tribal entities nor have ever attempted to address problems that may exist in allocation of domain names to such entities. We were informed that tribes were "not governments" and therefore CEPA was not eligible for a waiver. When we attempted to explain that tribes are governments and not subdivisions of states or the federal government, according to the United States Supreme Court, the CEMT agent did not seem able to understand. Instead he suggested that the tribe use either a ".com" extension (reserved for commercial sites) or a regional extension such as "www.nameoftribe.<state>.us." We tried to explain that, because tribes are governments recognized by the United States, ane are not commercial endeavors, the commercial site extension was inappropriate; the use of the .us domain is problematic because of regional identifiers. Many tribes will not use the state abbreviations as a matter of principle, because the tribal existence is independent of the state. Additionally, there are tribes whose boundaries transcend the boundaries of the states. The Navajo Nation's lands, for example, are spread across four (4) states. We do not believe that tribal entities ever have been consulted about their place in the Internet's system of hierarchical domain names, and we have been advised of many other instances in which tribal entities have expressed dismay over not being able to register under the .gov extension.

During a recent intertribal workshop, one topic of discussion was the lack of control over the use of tribal names in Internet addresses. One tribal representative reported at least three uses of his tribe's name without any having requested or received authorization from the tribal governing body. Use of tribal identifiers, typically either the name by which a tribe is recognized by the federal government or the tribe's own designation, is subject of concern for most tribes. The general population's perception of Indians is usually based on information gained through the media. Without tribal controls, the Internet is rapidly becoming a source of incomplete or mis-information. As currently managed, the domain name registration processes includes no procedure that allows tribal control of information broadcast under their names or that allows the casual browser assurance that the information found under a specific domain name either is authorized or endorsed by any tribe or tribal entity. The following specific comments are intended to begin the discussion on addressing these issues.
 

Responses to Questions for Public Comment
 
Question.How should the present geographic structure of .us be extended or modified? What changes should be made in RFC 1480 or the posted policies for .us?
Response. While the present structure of .us generally may be acceptable for most purposes, for the purpose of identification of tribal groups or organizations, the use of the <state> identifiers is inappropriate. With limited exceptions provided under federal laws, tribes and states are distinct and separate entities; one is not subject to the control or the jurisdiction of the other. While a geographic designation such as NW (Northwest) or CONUS (Continental United States) may be appropriate, the use of the <state> designation is only marginally geographic and should not be applied to the tribes. As stated in the RFC, the current structure of .us is "geopolitical," but it does not recognize the unique political status of the tribes. Consideration of the status of tribes should result in the development of a new Second Level Domain ("SLD") under .us, not unlike "fed.us" or "dni.us." If an appropriate resolution of tribal concerns is reached, changes in policies related to the use of the .us domain will have to be addressed, but only with the input of tribal groups.
 
Question.Specifically, should special-purpose second-level domains be created under .us? If so, how should such domains be created and administered?
 

Response. The most appropriate method of addressing tribal concerns would be the development of a new Top Level Domain ("TLD"). If a new TLD cannot be assigned to the tribes, the only other adequate remedy would be the development of a credentialing SLD under .us. The tribes, as well as the general public, need assurances that they can identify sites that are approved by the governing body of the tribe that the sites allege to represent. Such assurances can exist only if registration of tribal, tribally-identified, or "Indian" sites is controlled by the tribes themselves. While the actual administration of the domain could be provided either by an Indian entity, an independent contractor selected by the tribes, or a currently recognized registrar, policies on registration should be made only by the tribes. Because there are over 500 federally recognized tribal entities, use of an intertribal entity may be an appropriate mechanism to ensure tribal control of policy decisions.

Whether a new TLD or SLD under .us is to be provided, registration within the domain should be allowed only pursuant to approval of the appropriate tribal entity. Each tribe should be granted an unique identifier, typically the tribal name (Campo, Crow, Blackfeet, etc.) or a tribally-approved derivation of such name. Policies, approved by the tribes, should require applications for addresses under the domain to be made, not to a registrar, but to the recognized governing body of the tribe. The governing body would have the power to approve or disapprove registration of the name by formal resolution. The applicant would provide a copy of such resolution to the appropriate registrar, which then would post the name on the Internet. Because of the potential abuse of tribal names, governing entities, unlike other registrars, should be allowed the discretion to rescind approval of a name by resolution upon a finding that the holder of the name has violated very specific standards. Such standards could include posting of material offensive to the tribe or inappropriate use of the tribal name.

Because of the uniqueness of tribal names and the tribes' recognition of subordinate entities, authorization of a new TLD or SLD would not result in an undue burden on registration or Internet access. Under the new identifier, whether ".<new TLD>" or .<new SLD>.us," the new domain addresses would be distinctive and easily identify the entity authorizing its use. For example, a domain name could be: <entity name>.<tribal name.>.<new TLD> or <entity name>.<tribal name.>.<new SLD>.us. For CEPA, a domain name could be: CEPA.Campo.<new TLD>. Because the tribal identifier, once established on the Internet, would never change, registration of new entities would be much simpler. The responsibility for determining potential name conflicts would rest with the tribal governing body. Because the universe of potential names under a tribal subset is quite small, conflicts in registration would be limited and could be resolved on a local level. Because control of the use of the tribal identifier would rest with the tribal governing body, decisions to allow commercial use of the tribal domain also would be made on a local level. In reality, operation of a tribally controlled TLD or SLD could be much simpler than operation of any other domain.
 

Conclusion
 

Recently the President of the United States issued Executive Order 13048 setting forth policies related to regulatory provisions uniquely affecting tribal governments and requiring agencies to cooperate with tribes in gaining waivers of such policies. That Order requires policy development to be guided by principles of respect for Indian tribal self-government and sovereignty and requires agencies to allow representatives of tribal governments to provide input in the development of policies on matters significantly or uniquely affecting tribal communities.

The RFC states that: "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 is appropriate to note that we have not heard of a single instance in which a tribal entity has been invited to participate in discussion on modification of administration of the domain. We believe that Executive Order 13048 requires NTIA to consider tribal input in the development of the policies related to management of TLDs. We also believe that the only appropriate method of addressing tribal concerns is the development of either a new tribally-controlled TLD or a tribally-controlled credentialing process that would allow for a tribally-controlled SLD under .us.

###

From: "Kidder, Sue" <sue.kidder@doa.state.wi.us>

To: "'usdomain@ntia.doc.gov'" <usdomain@ntia.doc.gov>

Date: 10/5/98 5:27pm

Subject: Comments on .us Domain Space
 

The attached document is in Word 7 format.

<<NTIA Comments 10-5-98.doc>>
 
 
 
 

M E M O R A N D U M
 
 

DATE: October 5, 1998
 

TO: Karen Rose, Office of International Affairs (OIA)

National Telecommunications and Information Administration (NTIA)
 

FROM: Susan Kidder, Internet Architecture Project Coordinator

Division of Technology Management

Wisconsin Dept. of Administration
 

SUBJECT: Request for Comments on .us Domain Space
 
 

We have the following comments related to the .us Domain Space:
 

1. How should the present geographic structure of .us be extended or modified? What changes should be made in RFC 1480 or the posted policies for .us?
 

The main thing in the ".us" domain is redundancy. There is an opportunity to shorten the addresses for state agencies, for example, by changing the .state.xx.us to xx.us. There is an opportunity to make cities, e.g. www.ci.cityname..xx..us), more consistent with the format for states, e.g., nameofcity.ci.xx.us.

2. What are the benefits and costs of different options for allocating second-level domains under .us? How should the allocation of such second-level domains be decided and administered? What should be the terms of delegation?
 

Each State (as in State government) could allocate names for its geopolitical bodies directly under its domain, or delegate this task to a subcontractor. There could also be separate subunits of .us (e.g. .com) delegated off to private naming authorit(ies). A standard way of dealing with Cities vs. Towns vs. villages vs. counties must be developed because the names might overlap.
 

3. Specifically, should special-purpose second-level domains be created under .us? What are the benefits and costs of creating particular special-purpose domains (e.g., industry-specific, credentialing, zoning)? How should such domains be created and administered? Are there reasons to map names and other addressing and identification systems (e.g., postal addresses, telephone numbers, longitude and latitude, uniform resource numbers or others) into .us?
 

As long as there is a way to distinguish the geopolitical names from the special-purpose subdomains, then both could exist. It would not be good to map in other kinds of identifiers or categories. For one thing, software could not depend on them -- if they meant something, that would increase the likelihood that someone would falsify/spoof names.
 

4. Alternatively, should .us be treated as an unrestricted top-level domain like .com or should one or more specific second-level domains such as .co.us or .com.us be used for unrestricted assignment of domain names (as in .com)? How should such unrestricted domains be administered and by whom?
 

At the top level, .us should not be unrestricted. An unrestricted second-level domain is acceptable as long as it does not conflict with the geopolitical entities.
 

5. How should conflicting proposals and claims to manage or use .us subdomains be resolved? Who should have responsibility for coordinating policy for .us over the long term? What public oversight, if any, should be provided?
 

6. What rules and procedures should be used to minimize conflicts between trademarks and domain names under .us? Should this problem be treated differently at international, national, state, and local levels? Should special privileges be accorded to famous trademarks, such as a right to register directly under .us or a procedure to preempt the use of the trademark in a range of subdomains?
 

As part of a firm getting the profit from managing an unrestricted domain, they also become responsible for it -- for example, by agreeing to do a trademark search on names before they are used.
 

7. What role should states play in the allocation and registration of their respective subdomains? Should commercial names be permitted under states as third-level domains? Or should such third-level domains be limited to special categories such as domestic corporations or other state-licensed entities? Should states and localities operate registries and accept registrations directly? To what extent should state policies be coordinated and through what mechanisms and procedures?
 

States could be responsible for allocating and registration of their respective subdomains or states could delegate this responsibility to a third party. There should be uniform standards established for states and/or their delegates to follow.
 

10. By what type of entity should .us be administered? Private, governmental, or quasi-governmental? For profit or not-for-profit? What are the advantages and disadvantages of using one type of entity (private, public, for profit, not-for-profit) over the others?
 

As long as there are uniform standards to use in administering .us, it should not make any difference if the entity that does that administration is private, governmental, quasi-governmental, profit or not-for-profit.

###

1. See, e.g., Vaudable v. Montmartre, Inc., 193 NYS2d 332, 123 USPQ 357 (NY Sup Ct 1959) (protecting famous mark MAXIM's in a manner consistent with Article 6bis of the Paris Convention). See also Davidoff Extension, S.A. v. Davidoff Int'l, Inc., 612 F Supp 4 (SD Fla 1984), aff'd, 774 F2d 1178 (CA11 1985), cert. denied, 475 US 1122 (1986) (foreign trademark owner protected from unfair competition under Article 10bis of the Paris Convention).

2. Buti v. Impressa Perosa S.r.l., 139 F3d 98, 45 USPQ2d 1985 (CA2 1998); Person's Co. v. Christman, 900 F2d 1565, 1568, 14 USPQ2d 1477, 1479 (CA Fed 1990); Fuji PhotoFilm Co. v. Shinohara Shoji Kabushiki Kaisha, 754 F2d 591, 599, 225 USPQ 540, 546 (CA5 1985), E. Remy Martin & Co. v. Shaw-Ross Int'l Imports, 756 F2d 1525, 1531, 225 USPQ 1131, 1135 (CA11 1985); Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F2d 633, 641-42, 109 USPQ 438, 443-444 (CA2), cert. denied, 352 US 871 (1956).

3. Interstellar Starship Services, Ltd. v. Epix, Inc., 983 F Supp 1331, 45 USPQ2d 1304 (D Or 1997).

4. Interstellar Starship Services, Ltd. v. Epix, Inc., 983 F Supp 1331, 45 USPQ2d 1304 (D Or 1997). See also Gateway 2000, Inc. v. Gateway.Com, Inc., 1997 US Dist LEXIS 2144 (EDNC Feb. 6, 1997).

5. Statement of Jim Courter on Behalf of CORE to United States House of Representatives Science Committee. http://www.house.gov/science/courter_03-31.html. See also Final Report of the International Ad Hoc Committee: Recommendations for Administration and Management of gTLD's, http://www.iahc.org/draft-iahc-recommend-00.html.

6. See infra note 17.

7. The Green Paper, http://www.ntia.doc.gov/ntiahome/domainname/dnsdrft.html.

8. The White Paper, http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.html, at ¶ 13.

9. See Draft Specifications for Administration and Management of gTLDs, http://www.iahc.org/draft-iahc-gtldspec-00.html.

10. There is also some appeal (that any parent can perceive) to creating a separate gTLD for pornography -- a seemingly simple way of segregating the seamier side of the internet. However, First Amendment considerations likely render unworkable the sort of line-drawing necessary to encapsulate pornography. Reno v. ACLU, 117 SCt 2329 (1997). Many minors too might welcome such a simple means for locating exactly that of which their parents disapprove.

11. See Hanson v. Denckla, 357 US 235, 253, 78 SCt 1228, 1240, 2 LEd2d 1283, 1298 (1958).

12. Personal jurisdiction has been sustained in numerous cases. Panavision Int'l v. Toeppen, 141 F3d 1316, 46 USPQ2d 1511 (CA9 1998); Telephone Audio Productions, Inc. v. Smith, No. Civ. A. 3:97-CV-0863-P, 1998 WL 159932 (ND Tex Mar. 26, 1998); Mieczkowski v. Masco Corp., 947 F Supp 782 (ED Tex 1998); Quality Solutions, Inc. v. Zupanc, 993 F Supp 621 (ND Oh 1997); Superguide Corp. v. Kegan, 987 F Supp 481, 44 USPQ2d 1770 (WDNC 1997); Hasbro, Inc. v. Clue Computing Inc., 994 F Supp 34, 45 USPQ2d 1170 (D Mass 1997); Haelan Products Inc. v. Beso Biological Research Inc., 43 USPQ2d 1672 (ED La 1997); Digital Equipment Corp. v. Altavista Technology, Inc., 960 F Supp 456 (D Mass 1997); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F Supp 1119, 42 USPQ2d 1062 (WD Pa 1997); Maritz Inc. v. Cybergold Inc., 947 F Supp 1328, 40 USPQ2d 1729 (ED Mo 1996); Inset Systems Inc. v. Instruction Set Inc., 937 F Supp 161 (D Conn 1996).
 

Personal jurisdiction has been found lacking in many other cases. Cybersell, Inc. v. Cybersell, Inc., No. 96-17087 (CA9 Dec. 2, 1997); Bensusan Restaurant Corp. v. King, 126 F3d 25, 44 USPQ2d 1051 (CA2 1997); Blackburn v. Walker Oriental Rug Galleries, Inc., 999 F Supp 636 (ED Pa 1998); Green v. William Mason & Co., 996 F Supp 394 (DNJ 1998); Fernandez v. McDaniel Controls, Inc., 999 F Supp 1365 (D Haw 1998); Shapiro v. Santa Fe Gaming Corp., No. 97 C 6117, 1998 WL 102677 (ND Ill Feb. 27, 1998); Mallinckrodt Medical, Inc. v. Sonus Pharmaceuticals, Inc., 989 F Supp 265, 45 USPQ2d 1811 (DDC 1998); SF Hotel Co. v. Energy Investments, Inc., 985 F Supp 1032, 45 USPQ2d 1308 (D Kan 1997); Transcraft Corp. v. Doonan Trailer Corp., 45 USPQ2d 1097 (ND Ill 1997); E-Data Corp. v. Micropatent Corp., 989 F Supp 173 (D Conn 1997); Weber v. Jolly Hotels, 977 F Supp 327 (DNJ 1997); Smith v. Hobby Lobby Stores, 968 F Supp 1356 (WD Ark 1997); IDS Life Ins. Co. v. Sunamerica, Inc., 958 F Supp 1258 (ND Ill 1997), aff'd in part and vacated in part, 136 F3d 537 (CA7 1998); Hearst Corp. v. Goldberger, 96 Civ. No. 3620 (PKL) (AJP), 1997 WL 97097 (SDNY Feb. 26, 1997); McDonough v. Fallon McElligott, Inc., 40 USPQ2d 1826 (SD Cal 1996).

13. Cerruti 1881 S.A. v. Cerruti, Inc., 45 USPQ2d 1957 (SDNY 1998); Juno Online Services, J. P. v. Juno Lighting, Inc., 44 USPQ2d 1913, 979 F Supp 684 (ND Ill 1997); Planned Parenthood Federation of America v. Bucci, 42 USPQ2D 1430 (SDNY 1997), aff'd, 1998 WL 336163 (CA2 Feb. 9, 1998); Toys 'R Us, Inc. v. Abir, 45 USPQ2d 1945 (SDNY 1997); Interstellar Starship Services, Ltd. v. Epix, Inc., 983 F Supp 1331, 45 USPQ2d 1304 (D Or 1997); Cardservice Int'l, Inc. v. McGee, 950 F Supp 737, 42 USPQ2d 1850 (ED Va 1997), aff'd, 129 F3d 1258 (CA4 1997); Panavision Int'l v. Toeppen, 938 F Supp 616, 618-22 (CD Cal 1996), aff'd, 141 F3d 1316, 46 USPQ2d 1511 (CA9 1998); Toys 'R Us, Inc. v. Akkaoui, 40 USPQ2d 1836 (ND Cal 1996); Intermatic, Inc. v. Toeppen, 947 F Supp 1227, 41 USPQ2d 1223 (ND Ill 1996); Hasbro, Inc. v. Internet Entertainment Group, Ltd., 40 USPQ2d 1479 (WD Wash 1996).

14. See generally, Court a Move in Right Direction, The Evening Standard (Palmerston North), June 30, 1998 at 8; Gwynne Dyer, International Criminal Court Makes Sense, Chicago Tribune, June 24, 1998 at 15; Philip Wilan, Creation of a World Court For War Crimes Faces Uphill Struggle, The Irish Times, June 16, 1998 at 13.

15. See [Third Revised Draft] Substantive Guidelines Concerning Administrative Domain Name Challenge Panels, http://www.gtld-mou.org/docs/tracps.

16. The White Paper proposal for WIPO-sponsored dispute resolution procedures is one further indication that the NTIA envisions the internet of the future managed on a model similar to the one proposed by CORE.

17. The Restatement (Third) of Foreign Relations § 421(g) provides that exercise of jurisdiction is reasonable where the defendant has consented to jurisdiction. However, many jurisdictions acknowledge exceptions to enforcement of forum selection clauses, such as unconscionability, forum non-conveniens and other technical exceptions. See R. Kreindler, Obtaining Jurisdiction Abroad: Party Autonomy and Choice-of-Forum Clauses, 219 NY Law Journal 123 (1998).

18. See, supra note 12.

19. Playboy Enterprises, Inc. v. Chuckleberry Pub. Co., 939 F Supp 1032, 39 USPQ2d 1746 (SDNY 1996) (New York Court with prior jurisdiction over Italian publisher enjoined the foreign company from making available to internet users in the United States its Italian on-line publication bearing an infringing trademark. See also Weber v. Jolly Hotels, supra note 12 (claim in New Jersey Federal District Court against foreign hotel chain based on alleged U.S. presence via the hotel's website).

20. Such conflicts questions may turn in part on contract principles, to the extent registrants are required to consent to jurisdiction when applying for domain names, as well as tort principles, based on infringement of established marks.

21. United States courts generally recognize foreign judgments when there has been an opportunity for a full and fair trial; when there has been a voluntary appearance by the defendant; impartial administration of justice, and no special reason not to follow the judgment. Hilton v. Guyot, 159 U.S. 113, 202 (1895). See generally, D. Epstein and J. Snyder, International Litigation: A Guide To Jurisdiction, Practice and Strategy, Ch. 11 (1996).

22. Final Report of the Internet Ad Hoc Committee: Recommendations for Administration and Management of gTLD's, http://www.iahc.org/draft-iahc-recommend-00.html at § 7.2.1.

23. The White Paper, http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.html, ¶ 8.

24. Id.

25. Id.

26. Steele v. Bulova Watch Co., 344 US 280, 95 USPQ 391 (1952); Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F2d 633, 109 USPQ 438 (CA2), cert. denied, 352 US 871 (1956). See generally, J. Dabney, On the Territorial Reach of the Lanham Act, 83 Trademark Rptr. 465 (1993).

27. gTLD-Memorandum of Understanding http://www.gtld-mou.org/gTLD-MoU.html at § I(2)(a).

28. The Green Paper thus embraced the dubious proposition that "U.S. trademark law imposes no general duty on a registrar to investigate the propriety of any given registration."

29. See generally Religious Technology Center v. Netcom On-line, 907 F Supp 1361, 37 USPQ2d 1545 (ND Cal 1995), and cases cited therein. On May 14, 1997, the Senate passed the Digital Millennium Copyright Act of 1998, which limits liability of on-line service providers. S. 2037. A companion bill is pending in the House of Representatives. H.R. 2281.

30. See Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L Rep 1794, 1995 NY Misc LEXIS 229 (Sup Ct Nassau County May 24, 1995) (Prodigy liable as "publisher" of on-line bulletin board). But see 47 USC § 230(c) and (d), enacted after the Stratton decision, limiting the liability of internet service providers, although not for violations of intellectual property rights.

31. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 US 844, 214 USPQ 1 (1982); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F3d 259, 37 USPQ2d 1590 (CA9 1996).

32. See infra note 34. See also Network Solutions, Inc. v. Clue Computing, Inc., 946 F Supp 858, 41 USPQ2d 1062 (D Colo 1996); Giacalone v. NSI and Ty, Inc., 1996 US Dist LEXIS 20807 (ND Cal June 14, 1996); Pike v. Network Solutions, Inc., 96 Civ. 4256 (ND Cal).

33. Domain Name Dispute Policy (Rev. 03), ¶ 6, Feb. 25, 1998; see www.netsol.com/rs/dispute-policy.

34. Lockheed Martin Corp. v. Network Solutions, Inc., 985 F Supp 949, 963-4, 44 USPQ2d 1865, 1873 (CD Cal 1997). See also Academy of Motion Picture Arts & Sciences v. Network Solutions, Inc., 45 USPQ2d 1463 (CD Cal 1997).

35. 35 That .us is not an attractive domain space at present is obvious from the fact that host registrations in that domain space are outnumbered by registrations in the .com, .net and .edu domain spaces by a ratio of 17 to 1 - a number that is even more stark, from a commercial desirability standpoint, when it is considered that many of these registrations belong to American primary and secondary public schools - which are generally precluded from registration under the .edu gTLD.

36. 36 RFC 1480 explicitly states that "[w]hile ease of use to the end user is desirable, a higher priority must be placed on having a system that operates. This means that the manageability of the system must have high consideration."

37. 37 Indeed, with the opening of competition among registrars in the gTLD space, some of the new registrars might also elect to provide registrar services for the .us domain as well.

38. 38 Further, as we have noted earlier, existing registrants should not be required, for the foreseeable future, to change their geographically-based domain names as a result of any changes.

39. 1 CUP's views should not be construed as the official position of Howard University, which does not have a formal corporate opinion on this matter.

40.

2 Novak, Thomas and Donna Hoffman, "Bridging the Digital Divide: The Impact of Race on Computer Access and Internet Use," Working Paper (http://www2000/ogsm.vanderbilt.edu/). Also see RAND Corporation, "Universal Access to E-Mail: Feasibility and Societal Implications" (http://artsedge.kennedy-center.org/db/tm/pr/tech10.html): and Irving, Larry, "NTIA and Expanding Universal Service Concept," NTIA.

41. 3 Maxine Rockoff, founder of the Information Technology Initiative at United Neighborhood Houses of New York, argues that the definition of universal service should include at least: access to a computer, a personal Internet e-mail address, and the capability to make one's own information available via the Web.

42. 4 See Perkins, Mary K. "Postal Administrations and the Electronic Services Market," Manuscript. Howard University, Washington, D.C., 1996.