Terry Fisher on Domain Name Conflicts
Mr. Fisher identifies problems with the way domain disputes are resolved and offers solutions on how to improve this. [via Donna blogging from the Internet Law Program in Rio] Whereas, I (in red) state the issues I have with his resolutions.
There is unecessarily complex law, which produces unpredictable outcomes. Additionally, trademark owners arguably have too much power under the current system, and domain name owners too little. Finally, legitimate speech is inadequately protected.
This is called trademark law and it protects the rights of trademark holders who invest trillions of dollars in their marks. Trademark owners have power because they have secured rights to their marks. There are several recent sucks cases that indicate to me that speech is protected.
1.) Improve the UDRP
Eliminate the UDRP, eliminate the ACPA. The UDRP is too arbitrary based on the whims of a single panelist (and expensive) and perhaps overly protects trademark holders. The ACPA has the power of being misused (threat of economic extortion) by trademark holders without viable claims. Allow the Courts to provide mandatory arbitration for domain name disputes. That way the law of each jurisdiction is uniformly applied, registrants will be aware of the law to be aplpied prior to registration, and resolution will be swift and inexpensive.
2.) Add more gTLDs (generic top-level domains)
Eliminate all gTLDs except .com, .net and .org. The expansion into more gTLDs makes it increasingly difficult and more expensive for trademark holders to protect their marks.
3.) Eliminate protection for generic domain names (make it more like ordinary TM law)
Generic is subjective (what's generic for one product can be afforded the highest level of protection for another).
4.) Increase latitude for criticism and parody
The latitude is there in the trademark world, it's the DMCA that's the problem.
5.) Return to first-come, first-served
This is not necessary since we won't be expanding the number of available gTLDs.
6.) Repudiate domain names altogether (people use Google)
Let's be honest. Sometimes Google sucks. Marty has some interesting ideas on the domain name system, but I want domain names. I don't want keywords, I don't want google, I don't want directories. I want DOMAIN NAMES.
7.) Domain names may naturally atrophy as they become replaced by search engines
I refuse to allow a search engine run by corporations to dictate my availability on the web. I want to control whether people can find me.
My credentials: I have folowed the creation and application of the domain name dispute resolution systems since Fall 1999 and have published a law journal article in COJCR comparing the two systems.
Related: We imagine the lesson is that people have become so used to getting good search results that the actual Web addresses are becoming increasingly irrelevant. Real Time 033103 [WSJ]
There is unecessarily complex law, which produces unpredictable outcomes. Additionally, trademark owners arguably have too much power under the current system, and domain name owners too little. Finally, legitimate speech is inadequately protected.
This is called trademark law and it protects the rights of trademark holders who invest trillions of dollars in their marks. Trademark owners have power because they have secured rights to their marks. There are several recent sucks cases that indicate to me that speech is protected.
1.) Improve the UDRP
Eliminate the UDRP, eliminate the ACPA. The UDRP is too arbitrary based on the whims of a single panelist (and expensive) and perhaps overly protects trademark holders. The ACPA has the power of being misused (threat of economic extortion) by trademark holders without viable claims. Allow the Courts to provide mandatory arbitration for domain name disputes. That way the law of each jurisdiction is uniformly applied, registrants will be aware of the law to be aplpied prior to registration, and resolution will be swift and inexpensive.
2.) Add more gTLDs (generic top-level domains)
Eliminate all gTLDs except .com, .net and .org. The expansion into more gTLDs makes it increasingly difficult and more expensive for trademark holders to protect their marks.
3.) Eliminate protection for generic domain names (make it more like ordinary TM law)
Generic is subjective (what's generic for one product can be afforded the highest level of protection for another).
4.) Increase latitude for criticism and parody
The latitude is there in the trademark world, it's the DMCA that's the problem.
5.) Return to first-come, first-served
This is not necessary since we won't be expanding the number of available gTLDs.
6.) Repudiate domain names altogether (people use Google)
Let's be honest. Sometimes Google sucks. Marty has some interesting ideas on the domain name system, but I want domain names. I don't want keywords, I don't want google, I don't want directories. I want DOMAIN NAMES.
7.) Domain names may naturally atrophy as they become replaced by search engines
I refuse to allow a search engine run by corporations to dictate my availability on the web. I want to control whether people can find me.
My credentials: I have folowed the creation and application of the domain name dispute resolution systems since Fall 1999 and have published a law journal article in COJCR comparing the two systems.
Related: We imagine the lesson is that people have become so used to getting good search results that the actual Web addresses are becoming increasingly irrelevant. Real Time 033103 [WSJ]
