08-05-97 Electronic Filings on Internet Domain Names


Number: 154
From:      "Andrew K. Martin" <akmartin@coastalmicro.com>
To:        NTIADC40.NTIAHQ40(dns)
Date:      8/5/97 11:10am
Subject:   domain management

Regarding management of generic top-level domains:

These, as well as all other issues of identification on the internet (e.g.
IP addresses) should be handled privately and non-exclusively through more
than one organization.  There should not be a monopoly for both economic
and technological reasons.  Just as a single, monopolistic entity cannot
be trusted to insure fairness to the consumer, neither can it be entrusted
with the sole management of these resources, upon which the transfer of
vital and non-vital information depends.  Provision should be made to
allow several (possibly a limited number) of organizations manage
top-level domains and these organizations should succeed or fail based on
their fiscal viability and their commitment to provide quality services to
consumers.  Each of these should be allowed to manage any and all domains
as per the request of the consumer.  That one organization established or
provided prior service to a domain should not limit management of that
domain to that organization.  If that organization fails to meet the needs
of the consumer in a satisfactory manner, the consumer must have the
option to easily, quickly, and without penalty, transfer the management of
the domain to another organization, subject to, of course, any applicable
costs of service to the new manager of the domain. 

Andrew K. Martin


Number: 155
From:     "John R. Mathiason" <mathiason@netstep.net>
To:  NTIADC40.NTIAHQ40(dns)
Date:     8/5/97 6:38am
Subject:  Comments on theDomain Name System

Please find attached my comments on the issue of the Domain Name System.

Document available at: <http://_________________>
                           Before the
                  U.S. DEPARTMENT OF COMMERCE
   National Telecommunications and Information Administration
                      Washington, DC 20230

      In the Matter of                    )
      REGISTRATION AND ADMINISTRATION OF  ) Docket No. 970613137-7137-01
      INTERNET DOMAIN NAMES               )
               Comments of Dr. John R. Mathiason
    John R. Mathiason
    P.O. Box 48
    Mt. Tremper, NY 12457
    Adjunct Professor of Public Administration
    July 26, 1997


       A. Appropriate Principles
       Principles a-f 
       Other principles 
       B. General/Organizational Framework Issues
       Questions 1-5, 8-9 
       C. Creation of New gTLDs
       Questions 11, 13
       D. Policies for Registries
       Questions 16-17
       E. Trademark Issues
       Questions 21-27


1.  The issue of domain name regulation is related to the wider issue of
public responsibility for the Internet and within this the role of
international organizations.  Maintenance of the fundamental openness of
the Internet on the basis of universal access and fair competition
requires that this essential public good has reasonable regulation to
ensure a level playing field for all users.  As a new, borderless entity,
the Internet can neither be regulated effectively by national governments
nor by self-governance of its many and diverse users.  2.  The
registration of domain names system is the administrative heart of the
current Internet. The system is not working, because as constructed it
cannot cope with the volume of use, the growing disputes about trademarks
and a growing sense among many users that its institutions were not
legitimately founded.  The Memorandum of Understanding on generic Top
Level Domains has been a start in the right direction and should be
implemented.  It needs, however, further work to legitimize the structure
and to link the domain name system framework to a larger framework.  3. 
The role of the International Telecommunications Union and the World
Intellectual Property Organization are crucial to the improvement of the
domain names system, but further consideration needs to be given to the
nature of their role and the need to adapt to a policy environment in
which non-governmental and private sector entities as well as governments
have to be active participants in decision-making and where all users,
governments, non- governmental organizations and individuals need to feel
that they are involved in oversight as a%means of ensuring legitimacy. 

                           Before the
                  U.S. DEPARTMENT OF COMMERCE
   National Telecommunications and Information Administration
                      Washington, DC 20230

      In the Matter of                    )
      REGISTRATION AND ADMINISTRATION OF  ) Docket No. 970613137-7137-01
      INTERNET DOMAIN NAMES               )
               Comments of Dr. John R. Mathiason

1. John R. Mathiason respectfully submits comments in this proceeding. Dr.
Mathiason is an adjunct professor at the Robert F. Wagner Graduate School
of Public Service of New York University where he undertakes research and
teaching in the field of international public management including the
role of international organizations in the regulation of the Internet. He
has begun a study of the issue of domain names as a case study of the role
of the international public sector in the management of a complex
transnational public service.  As managing director of a consulting firm,
Associates for International Management Services, which includes
assistance in the use of the Internet for advocacy and training, he has a
direct concern with Internet management.  For over twenty-five years he
was a career staff member of the United Nations Secretariat and knows well
the strengths and weaknesses of international organizations. 

A. Appropriate

    a. Competition in and expansion of the domain name registration system
    should be encouraged. Conflicting domains, systems, and registries
    should not be permitted to jeopardize the interoperation of the
    Internet, however. The addressing scheme should not prevent any user
    from connecting to any other site. 

  1.  The Internet has evolved as an almost pure market that is also an
almost pure public domain.  Transcending national borders, with a
technology that can permit universal- accessibility, it is a public space
for communication that has never previously existed and for which there is
little precedent in law and institutional practice.  It has, however, a
minimum set of structures where regulation is necessary to provide order. 
The domain name registration system is at the heart of these structures. 

  2.  Use statistics show that the number of domain names is growing
geometrically.  From 165 .com domains in October 1991; through 600 .com
domains in March 1993, 11,000 in Janury 1994, 30,000 in January 1995 and
232,000 in February 1996; the number reached 1,222,000 in May 1997.  There
were, in June 1997, an estimated 22 million hosts on the Internet.
Assigning names in the context of this growth requires a structure that
can itself transcend borders and involve all of the parties who are the
users of the Internet.  These include governments, international
organizations and public entities like educational institutions, but more
importantly they involve provide sector firms, non-governmental
organizations and individuals.

  3.  If the Internet is to be orderly, it must have regulation.  An
unregulated Internet can invovle major costs as a result of unfair
competition, unresolved disputes and litigation, slowing of transmission
and reduction in access growth.  That regulation must be provided by an
institutional structure that can accomodate existing parties and the
growth that can be expected.  The principle, therefore should be:  a
freely and universally accessible Internet, open to fair competition which
is orderly on the basis of universally-accepted norms and standards. 

    b. The private sector, with input from governments, should develop
    stable, consensus-based self-governing mechanisms for domain name
    registration and management that adequately defines responsibilities
    and maintains accountability.

  1.  As noted in a.1-a.3, the Internet transcends national borders.  It
enters what Johnson and Post call a new kind of territory, not bounded by
geography and thus not easily subject to laws that are based on physical
place.  The question can fairly be asked, in a world where the private
sector either exists in a national environment subject to national laws,
or in the form of transnational corporations who, by moving from country
to country, can largely evade national laws, can self-governing mechanisms
work?  There is no reason to believe that, by themselves, they will be
stable.  The recent litigation between InterNic and AlterNic indicates how
fragile is the current system.  Nor is there an easy private sector
mechanism for arriving at a normatively binding consensus about
registration -- or for that matter anything else on the Internet.  The
disputes about the Memorandum of Understanding clearly show that there are
different parties with different conceptions of how the Internet should be
  2.  In any case, the Internet is a public good, not a private
one.  While private use of public goods is a normal practice, so too is
public regulatory authority.  It is within this public regulatory
framework that any self-government is achieved.  Thus, self-government in
the private sector -- or more properly, in Civil Society -- must take
place within a public framework, where the underlying consensus is worked
  3.  This public framework, which at the national level, is built on
a combination of governmental institutions and public input, needs to be
applied to the Internet.  This has not yet been done. 

    c. These self-governance mechanisms should recognize the inherently
    global nature of the Internet and be able to evolve as necessary over

  1.  The inherently global nature of the Internet means that the
self-governance mentioned in principle b has to be evolved within the
public framework of international institutions.  It is now time to
recognize the need for that broader framework and begin to take steps to
create it.  
2.  A institutional base exists in the organizations of the
United Nations system.  With universal membership, politically neutral
professional Secretariats and evolved and agreed procedures, they can
serve to organize the necessary dialogue among governmental, non-
governmental, private sector and individual stakeholders in the Internet. 
The fact that both the International Telecommunications Union and the
World Intellectual Property Organization are already involved in the
domain name question testifies to their utility.  However, the issues of
Internet regulation are only partially technical, and it will be necessary
in due course to see whether these are the most adequate mechanisms. 
Certainly, however, for the question of domain names, which has up to now
been posed as a technical question of assignment methods and dispute
resolution, these two institutions provide a base.  
3.  As the Internet
evolves, particularly in its international commercial use, other
institutions will have to be involved.  The fact that the World Trade
Organization has seen fit to begin negotiating specific agreements in the
information sector is an indicator of an evolving response to changing
requirements.  There will be more, some related to technology (and within
that satellite-based transmission system), some will be related to the
control of crime, others with issues of content regulation.  
4.  At that
point, the issue of coordination among the various regulatory schemes will
have to be raised.  The international public sector differs from the
national in that it is inherently non- hierarchical.  It has no sovereign
center or chief executive, it component parts are all formally equal in
status, and therefore different rules apply.  It depends, in fact, on the
legitimacy of action that comes from consensus decisions.  This requires
different institutional structures, as some national analyses have found. 
At that point, the institutional framework will have to be revisited. 

    d. The overall framework for accommodating competition should be open,
    efficient, and fair. 

  1.  The idea that the framework should be open, robust, efficient, and
fair is indisputable.  It must be recognized, however, that while openness
and fairness are clearly linked, there may be a tradeoff between fairness
and efficiency.  Fairness means, in the context of the Internet, that the
interests of the many diverse users are represented in the design of the
framework and in the monitoring of its implementation.  So diverse are the
users, that normal institutions will not achieve this.  It will be
necessary to create a new class of institutions at the international level
that permits participation.  This will, inevitably, be less efficient than
current government-based structures (where it is only necessary to
accomodate 185 countries who would normally negotiate in three to four
blocs).  However, to the extent that a consensus- based legitimacy is the
foundation of self-governance, it will be more effective, however
inefficient it may be. 

    e. The overall policy framework as well as name allocation and
    management mechanisms should promote prompt, fair, and efficient
    resolution of conflicts,
    including conflicts over proprietary rights. 

  1.  In national jurisprudence, resolution of conflicts always bears in
mind that justice delayed is justice denied .  For conflicts in the
Internet, where rights have historically been defined in terms of national
jurisprudence, but where the conflicts will inevitably be transnational,
prompt resolution will require the elaboration of international
instruments, norms and procedures that will permit fair resolution. 

2.  Whether promptness can be achieved will depend on the care with which
the overall policy framework and its mechanisms are worked out
internationally and with the participation of whom. 
   f. A framework should be adopted as quickly as prudent consideration of
    issues permits. 

  1.  As noted in previous comments, the framework should be adopted as
quickly as the various parties involved can be brought together
internationally to reach a consensus. 

    Other principles

  1.  A central principle should be that the policy framework and
regulatory mechanisms should reinforce the globalization of the world
economy, accelerate interdependence among peoples and strengthen
international public institutions in the interest of all of the world s

2.  Recognized in a cascading series of conventions, agreements and
declarations in a wide variety of fields, and embodied in a growing number
of international institutions to implement these agreements, the increased
interdependence that characterized the end of the 20th century and will be
the leitmotiv of the 21st.  This has meant that the size and context of
international public space has grown.  This borderless world can have
incalculable benefits to everyone, but may be particularly important to
Americans, many of whose national ideals are reflected in the way
international space has been defined, and whose economic well-being
increasingly depends on development elsewhere and whose physical
environment both affects and is affected by people outside its physical
boundaries.  The United States, therefore, has a special responsibility to
encourage the development of international institutions that reflect our
values. The Internet was a creation of US technology and, in its free and
open structure, based on fair competition, reflects fundamental American
principles.  But it has passed into the international domain:  it belongs
to the whole world.  It is imperative that we help create international
institutions whose structures and processes are consistent with our

B. General/Organizational
Framework Issues

    1. What are the advantages and disadvantages of current domain name
    registration systems? 

  1.  The main advantage to the current system has been its almost
seamless functioning. 

2.  Its main disadvantage is that it is not adapted to cope with the
physical growth and internati/nalization of the Internet and has begun to
develop systemic weaknesses in dealing with conflict.  It now appears
poorly adapted to the rapid changes that are occuring in international
communications and seems no longer to reflect a clear consensus among
users of the Internet.  Absent that consensus, the domain name
registration system is beginning to lapse into a costly and divisive
competition among parties with different perspectives about the Internet. 

    2. How might current domain name systems be improved? 

  1.  An agreed international policy framework for the systems, that
involved all groups of users, needs to be adopted at an authoritative
level.  To an extent that has been done by the Memorandum of Understanding
on gTLD s.  The difficulty with the procedure followed, which was probably
unique in international public agreements, is that key parties did not
join the consensus, and some, like Network Solutions, have actively
opposed it.  Absent an agreed international policy framework, which among
other things would link the management of the domain name systems to wider
issues and norms, it will continue to be difficult to make the system

2.  A clear and understood structure of international governance into
which the domain name registration system can be fitted is essential to

    3. By what entity, entities, or types of entities should current
    domain name
    systems be administered? What should the makeup of such an entity be? 

  1.  As noted above, for the system to be administered effectively, it
must be accepted by the diverse groups of users of the Internet, and it
must have a governmental connection since it deals with a public good. 
The proposal in the gTLD MoU goes a long way in that direction: it gives a
coordinating role to two international public organizations with universal
membership, but it is governed by a board that includes representatives of
the main civil society groups. 

2.  What the arrangement lacks is a legitimate way of selecting those
representatives.  The current lineup may well be the best, but it was
created without the kind of transparency of agreement that provides for
legitimacy.  It needs to be ratified (and possibly modified) by a public
means.  The ITU is one such means, but not the only one.  It might be
possible to refer the ratification process to the United Nations (where
the Economic and Social Council has on- going work on informatics), but
that would have to be done with extreme care to avoid linking domain
registration with issues that are related but not entirely relevant, such
as technology transfer. 

    4. Are there decision-making processes that can serve as models for
deciding on
    domain name registration systems (e.g., network numbering plan,
    setting processes, spectrum allocation)? Are there private/public
    administered models or regimes that can be used for domain name
    (e.g., network numbering plan, standard setting processes, or spectrum
    processes)? What is the proper role of national or international
    governmental organizations, if any, in national and international
domain name
    registration systems? 

  1.  The way in which both ITU and WIPO function to implement their
respective treaties and agreements is the best current model, although
they would clearly have to be modified to accomodate the role of civil
society (especially the large private sector firms that provide the
telecommunications hardware for the Internet, and the diverse community of
individuals who make up an autodenominated world of netizens . 

    5. Should generic top level domains (gTLDs), (e.g., .com), be retired
    circulation? Should geographic or country codes (e.g., .US) be
required? If so,
    what should happen to the .com registry? Are gTLD management issues
    from questions about International Standards Organization (ISO)
country code

  1.  The gTLDs reflect the new reality of the global economy and society: 
they are inherently transnational.  To retire them would be to deny that
reality.  Moreover, by now many of the existing domain names have taken on
the character of tradenames that are indelibly imprinted. It would be
inconceivable to imagine the disappearance of yahoo.com or microsoft.com.
Moreover, while many sites holding generic gTLDs are essentially national
(the reach of my Internet provider in Kingston, New York, netstep.net,
includes only Ulster and Dutchess Counties), their content and users are
inherently international.  There are many sites that are inherently
transnational (un.org for example).  Moreover, the existence of the
generic top level domains is a protection for the openness of the
Internet, since country code domains would presumably be easier to control
in a negative way. 

2.  Clearly gTLD management issues go beyond the ISO country code domains. 

    8. How should the transition to any new systems be accomplished? 

  1.  Practically speaking, any new system that is built on, as an
extension or addition, to an old system can make the transition by putting
all new transactions into the new system while gradually phasing out the
old.  The exception would be to those gTLDs whose administrator is not
part of the new system.  In that case, an arrangement would needed to be
made to make a complete handover to the new administrator of that part of
the system by a certain date. 

    9. Are there any other issues that should be addressed in this area? 

  1.  There are two other issues that need to be born in mind, if not
addressed directly.  First, there is a need for oversight and reporting on
the new mechanism that will involve the main groups of users.  This
includes procedures for determining who will represent those groups.
Second, the extent to which the domain name system is linked to other
systems and other issues needs to be spelled out and procedures worked out
to allow domain name system representatives to participate in the other
foru s. 

C. Creation of New gTLDs

    11. Should additional gTLDs be created? 
  1.  The proposals in the gTLD MoU make great sense to me.

    12. Are there technical, business, and/or policy issues about
guaranteeing the
    scalability of the name space associated with increasing the number of

    13. Are gTLD management issues separable from questions about ISO
    code domains? 

  1.  The gTLD management issues are related to, but separable from, the
ISO country code domains.  Relationships exist in terms of the use of
trademarks in ISO country code domains and the extent to which sites with
gTLDs can or should be controlled by national authority. 

D. Policies for Registries

    16. Should there be threshold requirements for domain name registrars,
and what
    responsibilities should such registrars have? Who will determine these
and how?
  The definition of threshold requirements and responsibilities clearly
have to be built into the policy framework.  Much of the answer is already
provided in the gTLD MoU. 

    17. Are there technical limitations on the possible number of domain

  1.  Whether there are technical limitation or not, a major consideration
is that the more domain name registrars exist, the greater the difficulty
in maintaining oversight and accountability and the more complicated the
decision-making process.  In this case, it is not a matter of too much ain
t enough but rather too much is too much. 

E. Trademark Issues

    21. What trademark rights (e.g., registered trademarks, common law
    geographic indications, etc.), if any, should be protected on the
Internet vis-a-vis
    domain names? 

  1.  The fact that the Internet is transnational means that an
international standard needs to be applied.  Currently, trademark law is
essentially national, but interdependence of the global economy has led an
increasing number of countries to make national law square with the
international conventions administered by WIPO.  The WIPO standard should
apply to protection and national laws should be brought into line with
those standards. 

2.  With this principle, international mechanisms can be set in place to
protect recognized trademark rights. 

    22. Should some process of preliminary review of an application for
registration of
    a domain name be required, before allocation, to determine if it
conflicts with a
    trademark, a trade name, a geographic indication, etc.? If so, what
    should be used? Who should conduct the preliminary review? If a
conflict is
    found, what should be done, e.g., domain name applicant and/or
    owner notified of the conflict? Automatic referral to dispute

  1.  The answer here is clearly yes and the appropriate preliminary
review should be done by WIPO, which already has a dispute settlement
procedure that could be adapted to the needs of the Internet. 

    23. Aside from a preliminary review process, how should trademark
rights be
    protected on the Internet vis-a-vis domain names? What entity(ies), if
any, should
    resolve disputes? Are national courts the only appropriate forum for
    disputes? Specifically, is there a role for national/international
    governmental/nongovernmental organizations? 

  1.  As noted above, national courts will have an increasingly more
difficult time solving disputes, since these are likely to be
multi-national in nature (if dealing with ISO country domain names) or
involving gTLDs whose international character is by definition.  The
primary role should rest with WIPO, monitored and assisted by
non-governmental organizations.  To the extent that enforcement may be
required, thought will have to be given to a mechanism whereby resolved
disputes are communicated to national authorities and applied by national
courts in accordance with the provisions of relevant conventions. 

    24. How can conflicts over trademarks best be prevented? What
    resources (e.g. databases of registered domain names, registered
    trade names) could help reduce potential conflicts? If there should be
    database(s), who should create the database(s)? How should such a
database(s) be

  1.  The technology exists to have data bases of data bases.  There is no
longer any need for a single centralized, Big Brother type database.  What
is needed, however, is an international focal point to help direct
searches.  Obviously WIPO would be a possibility and, in any case, should
be involved.  An institutional framework in which the databases would be
developed by private parties, universities, trade associations or even
governments would be needed and a central point to bring them together

2.  Such a data base system could be searched for conflicts prior to
registering the domain name, using standard protocols developed by the
relevant international organization.  In fact, applicants could be
encouraged to search the data base themselves for conflicts as a means of
minimizing the work of the WIPO or whoever else would be designated to
make the official search. 

    25. Should domain name applicants be required to demonstrate that they
have a
    basis for requesting a particular domain name? If so, what information
should be
    supplied? Who should evaluate the information? On the basis of what

  1.  Clearly with regard to the generic TLDs, some proof that the
criterion of the level is met, e.g. an organization clearly must not be a
commercial enterprise to obtain the .org designation. This means that the
criteria have to have been spelled out and agreed, again at the level of
an international organization.  Application of the criteria could then
easily be done by the registrars. 

    26. How would the number of different gTLDs and the number of
registrars affect
    the number and cost of resolving trademark disputes? 

  1.  Given an accessible system of data bases, there should be
little%incremental cost per registrar for resolving trademark disputes. 

    27. Where there are valid, but conflicting trademark rights for a
single domain
    name, are there any technological solutions? 

  1.  The issue of trademarks is not technological.  A set of words and
symbols are attached to a product or company in the minds of customers. 
Adding additional generic names or subcodes would not solve this problem. 
The fact that the Internet is globally accessible viciates the normal
flexibility of trademarks in national law, as was also noted by Johnson
and Post. 

                            Annex 1
                          Service List

Mr. Richard Beaird, Department of State, Rm. 4826, Washington, D.C.
Dr. Jo Ivy Buford, Dean, Robert F. Wagner Graduate School of Public
Service, New York University
Hon. Maurice Hinchey, Member of Congress
Mr. Riel Miller, SGE/AU, Organization for Economic Cooperation and
Development, Paris
Prof. Kurt Mills, American University of Cairo, Egypt
Prof. Michael Schechter, Michigan State Univeristy
Prof. Tim Sinclair, University of Warwick, United Kingdom
Prof. Dennis Smith, Director, Public Policy Program, Robert F. Wagner
Graduate School of Public Service, New York University

John Mathiason
Adjunct Professor
Robert F. Wagner School of Public Administration
New York University