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GROUP A: PROFILE OF THE ENTITY (Wednesday, July 1, 1998)
Description of Process
DESCRIPTION OF PROCESS
A collective attempt was made to list the functions of the new entity. (At times there was confusion whether the "entity" was the interim group/board specified by the white paper or the final organization.) Brainstorming produced a lengthy list; the group then sought to consolidate the list, subsuming some ideas under others when a given idea's contributor was so persuaded.
Once consolidated, the group attempted to see where there was unanimity for each of the potential functions. Full consensus was required to denote an item with an ìAî for agreed or to cross an item off the brainstorm list (either as an issue that was properly a subset of another issue already listed, or outside of the scope of the new entity). An "M" denoted that there are mixed views.
There was a suggestion to utilize a "red dot" system of cumulative voting instead of a public system of up and down voting so that participants could allocate a fixed number of votes among functions. This would allow participants to vote "extra" for those areas they felt strongly about, with correspondingly fewer votes left over to place in favor of other functions.)
With brief attempts at clarification, followed by quick voice votes to see if there was agreement on "in" or "out," the following list was produced:
BRAINSTORM LIST FOR FUNCTIONS OF THE NEW ENTITY
FUNCTIONS NOT CROSSED OFF:
A1. Set policy regarding IP numbers
A2. Root Zone System (maintain coherency)
A3. TLDs (management) [crossed off] [see 12 and 16 also]
M4. "Other" technical parameters (delegation of protocols, IP related numbers)
M5. Trademark
M6. Coordinate control of country codes (Should this be done in this organization? Portability? Who should coordinate IP addresses or make country code decisions? IANA? Should the Board set policy?)
A7. (Policy) Oversight of registries, registrars [crossed off] [see 15 also]
M8. Dispute Mechanisms, Review & Appeal; oversight of economic decisions [exclusive of trademark] [crossed off] [See 18]
A14. Establish organizational structure and financial survival of new entity (include business plans) [crossed off] [see 10]
15. Uniform Standards for registrars and registries (#7 is a different subject)
A20. Establish limited scope of policy issues. Provide authority to Board in articles. Purpose of stated in article, delegation of to have a clear transfer of authority for a limited purpose - rather than the board establishing its own authority, power. What entity position to add and what to adopt.
M22. Identify privacy, security issues; [separate from 20], issues such as maintaining a database privately
A24. Set minimum standards barriers to entry; Minimize barrier to entry. [crossed off] [see 3]
There was confusion between "functions" and "guiding principles," with some thought that a couple suggested functions were really guiding principles that we might try to agree on.
The issue of whether these discussions should be confined by the White Paper or were to be used as merely an invocation of issues arose several times. The group was split on whether the actual procedures should be worked out, or rather, the issues should be aired out. Identifying issues emerged as the will of the majority.
SUGGESTED GROUPINGS:
1. A suggestion was made to group the brainstorm list of issues into the headings of (1) Minimal technical issues, (2) Internal Organization of the entity (bylaws), (3) Successor planning, and (4) Trademark issues.
2. Another suggestion was to group the issues into Policy, Legal, and Technical issues.
3. Another suggestion was to group the issues into Policy, Legal, Technical, and Business issues.
DISCUSSION TOPICS:
I. Principles Upon Which To Structure a New Corporation
II. Administrative Issues
A. Origin / Nature of authority / Scope of Entity's Powers
1. As the new entity will supercede IANA, be a ãIANA plusä, the new corporation should have authority over the regionals in at least same scope as IANA does.
2. Will this entity be directed by the three regionals since representatives from these organizations would be on the Board?
3. Whether this new corporation should tell the regionals what to do?
4. The new corporation should be the single place where the policies are coordinated
5. A recurrent theme was to what extent the entity should be one of limited, enumerated powers, i.e. what functions should be off the table no matter what the entity would later decide about its own scope.
- a. This new corporation is intended to be a government replacement mechanism. As such, keep its powers minimal. Keep it Simple Stupid. IANA performed four functions, we should not be adding functions.
- b. "Establish a limited scope of policy issues" was, to some, the idea that the organization shouldn't be able to constantly expand its mandate beyond some sort of initial "grant" from the internet community.
- c. One thought was put forward that the organization should be allowed to reserve the potential to make policy in certain areas, particularly as this might help it preclude regulation in those areas by national governments, while choosing to forbear actually making any policy in those areas.
6. Dispute Mechanisms
- No consensus reached on what this would mean, and whether the entity itself should set up its own dispute/review/appeal mechanisms or have them imposed externally (by a body like this one) from the moment of inception.
C. Credentials for New Stockholders
D. Funding of organization
E. Organizational Structure
F. Credentials for Participant Status
G. Successor organization and evolutionary processes to successor organization
H. Delegation procedures
III. Core Issues
A. Delegation of IP Space
1. Issue of Competition in allocation of IP#s. ARIN not performing efficiently & as a result, the IP Numbers are not being allocated efficiently.
2. Issue of Expanding the numbers. The warning that IPv6 is not a panacea was given, noting that there is still the problem of coexistence and the integration of IPv4 and IPv6.
3. Should there be geographical based routing? Seemed all agreed that should not.
4. Upon obtaining an IP number, you are locked to an ISP. How should the issue of this natural monopoly be addressed?
5. IP assignment policy should be guided by justification of use and ease of entry.
6. The allocation of IP numbers is currently managed in a collegial manner. IANA operates with no written charter and without clear policies for allocation. There must be rules that are followed.
B. Management of Root Server
1. The issue is whether the new corporation would have the authority to manage whoever is selected / elected,etc. to manage it. The new corporation should not be in the business of managing the root server. Currently, NSI runs it.
C. Management of Domain Name Space
1. Creation of New TLDs: The new corporation would have the authority to create new TLDs. Issues as follows:
- a. Should the addition of new ones be restricted on bases other than technological?
- b. Suggestion: no new gTLDs are added until legal trademark issues are resolved.
- c. Issue: Will the addition of new TLDs add to the dilution of those currently existing?
- d. The technological reality is that the more TLDs that are added, the more search times grow.
- e. Goal of maximizing competitive market in the area of domain names.
- f. Consumers want predictable consumer registry registrar and country re: TLDs meaning.
2. Technical issues of the type of characters used to create the domain name.
3. To what extent should the non-generic TLDs be governed by this new entity?
4. Country Codes: No consensus reached.
- a. Should the new entity be able to assign (and revoke) management of respective ccTLDs from given countries and their representatives?
- b. Should it be able to further define policies for ccTLD registration and management?
5. Uniform standards for registrars & registries. Some disagreement here.
- a. Entity might want to impose minimum "best practices" for registrars.
- b. There are general issues which affect all registries (common problems that exist), and is this the appropriate body to judge those issues?
D. Protocol numbers
IV. External Issues
These contentious issues are largely external to the organization. In the spirit of obtaining consensus and establishing a framework with which to work, authority to issue policies on these matters, as well as the policies themselves will be left for more appropriate time.
A. Trademark
1. There was confusion over what was meant by "trademark issues"--did it mean "take trademark issues into account when expanding or restructuring the domain name architecture" or "set up a trademark dispute resolution mechanism independent of national/regional courts"? True ambivalence within the group on the latter; some thought this would be a necessary (or at least useful) function of the entity, while others were certain it would be a big mess better left to existing legal systems.
B. Privacy / Security / Appropriate Use
1. Confusion over meaning; fear about excessive delegation of authority to entity.
2. An overarching issue was over whether issues like pornography and security be dealt with at the registry level inserting provisions into the contracts that cover such issues and include provisions for dispute resolution?
CONSENSUS NEW ORGANIZATION FUNCTIONS
ESTABLISH UNITS/SCOPE OF POLICY ISSUES
PARTICIPANT LIST
In the morning session, the group attempted to sample the waters of consensus. Consensus did not gush forth. After long hours of productive input and considerate debate, however, a small stream of agreement emerged.
The major area of disagreement concerned whether or not the new entity should have the authority to resolve disputes. No consensus on the issue of general dispute authority could be reached so, in light of time constraints, the group decided to limit its discussion to disputes between cybersquatters and trademark owners. "Cybersquatting" (also called "cyberpiracy" and "name-nabbing") was defined by one speaker as "acquiring a domain name registration for a word that is trademarked by another party and to which the domain registrant has no legitimate right." No consensus was achieved on the precise meaning of the term, however.
Trademark enforcers raised the following concerns.
1. Cybersquatting is rampant, involving perhaps as much as 40% of the current disputes. Eliminating such infringers by litigation is a significant economic burden if the trademark is famous and nearly prohibitive if the mark owner is a small entity operating on a budget.
2. Using a famous mark to attract viewers to pornographic and other unacceptable content not only damages consumer confidence in the mark and in the domain name system, but it can harmful to children and other Net users.
3. There is no globally consistent policy among TLD registrars about cybersquatting.
4. Until dispute resolution issues can be resolved, the addition of new TLDs will only complicate the situation.
Arguments were made against giving registrars authority to remove cybersquatters.
1. Domain names should be treated as addresses not as trademarks. Trademark infringement should be determined by examining the content of a site, not by its address.
2. Name speculation involves only 25% of current domain name disputes and does not reflect the majority of actions filed by trademark owners against domain holders. The more frequent dispute is between conflicting legitimate name users.
3. Enforcement of trademark is actually easier to accomplish on the Internet than in other media because detection and identification of domain name registrations are easy to track.
4. Determination of trademark infringement is a complex matter and not a judgment best made by domain registrars.
5. Such authority amounts to a prior restraint on free speech.
6. Given the diversity of name rights among various nations, it would be unduly burdensome for any registrar to make legal determinations concerning name disputes. Conversely, the lack of a uniform dispute policy binding on all registrars might lead to unfair competition among registrars.
Some solutions to cybersquatting were suggested.
1. Require prepayment of registration fees. Registrars countered that a) fees are collected fairly quickly now, b) the majority of non-payers are not cybersquatters, c) the registrar who is willing to pay the upfront fee on behalf of the customer (until the customer's payment to the registrar clears) will have a competitive advantage over registrars who cannot undertake such financial risk, d) perhaps 30% of current gTLD registrations are made by legitimate users experimenting with names to see which works best and prepayment would eliminate the customer's flexibility, e) modest pre-payment fees probably wouldn't stop serious cybersquatters anyway and high pre-payments would be burdensome on legitimate registrants (although another registrar reported success with pre-payment as a method of reducing cybersquatters, particularly if the registration did not issue until the payment cleared),
2) Hold firmly to a first-to-register policy.
3) Require arbitration as a more appropriate means of resolving disputes.
Technical solutions were proposed.
1. Design a standard which would permit notification to the trademark owner of identical/similar string registrations.
2. Create more robust directory solutions/more useful search tools.
3. Expand the number of TLDs. This was unsatisfactory to trademark owners as it simply increased the number of possible sites for squatters to grab.
4. Create TLD zoning ordinances with tight specifications for registration in specific zones.
Some issues were raised but remain unresolved.
1. Assuring name portability in the event of multiple registries or TLD-exclusive registrars
2. Ensuring enough name space for future generations of users
3. Avoiding antitrust concerns in the registry system
4. Balancing the privacy of registrants with the need for sufficient contact information
5. Defining the legal protection of registrars for their legitimate business decisions
6. Determining the authority of the entity to require the use of arbitration/other mechanisms for dispute resolution as a condition of registration
7. Protecting innocent domain holders from trademark abuse
8. Underutilization of the .us TLD
9. Limiting the numbers of ccTLDs
The TM/DN Working Group made the following consensus resolutions.
1. The new entity (aka Newco or the Board) should gather information concerning disputes between trademark owners and cybersquatters and make such information available to the public.
2. Newco should recognize that individuals and organizations have concurrent, legitimate rights in names that are not based on trademark.
Protection for local commercial concerns without national trademark registrations was also mentioned. The Working Group did not make a recommendation on how to resolve these kinds of conflict, but it was the consensus of the group that a national trademark was not necessarily the only interest in a name which might entitle one to a domain registration.
3. Newco should encourage the development of various rapid alternative dispute mechanisms.
4. Newco does not resolve trademark/domain name disputes.
5. The Trademark/Domain Names Working Group supports the creation of a Names Council and recommends additional discussion at subsequent for a focus solely on its formation. Some of the functions for which the Names Council should be responsible are:
6. The TM/DN Working Group recommends the following processes for Newco decision-making:
Permission to copy and distribute with attribution is freely granted.
FWP WORKING GROUP D (Implementation Working Group)
INTRODUCTION
The July 2, 1998 Implementation Working Group meeting in Reston, Virginia was chaired by David Weitzel of Mitretek Systems. Real time white board feedback of the discourse was presented by Gene Crick of the Texas ISP Association. The participants' comments were written down for transcription into minutes by Craig Simon of the University of Miami's School of International Studies. The Working Group met during two sessions. Each session included about 50 attendees.
MORNING SESSION
The main activity of the morning session involved:
- 1) Selecting proposed agenda items;
- 2) Conducting a wide-ranging discussion within the bounds of those items, and;
- 3) Noting points of contention and reaching agreement on points of consensus.
MORNING SESSION: PROPOSED AGENDA ITEMS
- A. Determine the jurisdiction of the board.
- B. Determine the board's legal form.
- C. Determine the board's incorporators.
- D. Make a statement of consensus and commitment regarding IFWP legitimacy and authority.
- E. Clarify the board's constitutive processes.
- F. Determine the board's scope of responsibility.
- G. Select a slate of nominees.
- H. Determine selector/voter eligibility and selection/election methods.
- I. Establish conflict of interest criteria pertaining to board members.
- J. Establish liability criteria pertaining to the board and member organizations.
- K. Establish a mechanism for carrying on these discussions.
MORNING SESSION: NOTABLE POINTS OF CONTENTION
1. The Implementation Working Group participants asked that the record show strong disagreement over the issue of who should be the members of the new organization.
MORNING SESSION: CONSENSUS POINTS
Four distinct items were specifically assented to during the meeting. Note that after the official working group proceedings Mr. Simon suggested Mr. Weitzel append a clarifying sentence to the first item. This was accepted and delivered to the Report Plenary where the clarification was received without dissent. The full statement is included here with slight refinement.
1. There will be an interim board. Both the interim board and permanent board will have limited powers. The job of the interim board is to recommend to the membership the process by which the final board is selected, unless we are able to supply the specifics of that process. The word "we" refers to the participants in the discussions carrying forward onto the Internet and other face meetings now scheduled in Geneva and Singapore, and likely later.
2. No portion of the operating profits of the organization should enure to any individual or entity.
3. The functions employed in nomination of the candidates to the board and the functions employed in the final selection of the board should be separate.
4. The interim board should not have the authority to enter new gTLDs into the zone file.
AFTERNOON SESSION
The main activity of the afternoon involved:
1. A random draw comment period during which 12 Implementation Working Group participants were each given a slot of time to offer a proposal and to respond to questions that were restricted to points of clarification regarding the proposal;
2. Conducting general discussion based on the accumulation of those proposals and the morning's work, and;
3. Noting points of contention and reaching agreement on points of consensus.
AFTERNOON SESSION: PRESENTERS OF PROPOSALS
- 1. Eric Weisberg, Internet Texoma
- 2. Harold Feld, Domain Name Rights Coalition
- 3. (name withheld until permission received)
- 4. Einar Stefferud, Open Root Server Confederation
- 5. Larry Vaden, Internet Texoma
- 6. Christopher Ambler
- 7. (name withheld until permission received)
- 8. Bernard Turcotte, CANARIE
- 9. Jay Fenello, Iperdome
- 10. Danny Weitzner, Center for Democracy and Technology
- 11. Joe Klein, Titania Corporation
- 12. (name withheld until permission received)
AFTERNOON SESSION: NOTABLE POINTS OF CONTENTION
Support for a number of possible consensus points was strongly pronounced but not dominant.
- 1. The interim board should be chosen for inclusion and credibility.
- 2. There should be a "Straw Poll" Web site for board candidates.
- 3. There should be a structure which allows for popular election and associate membership.
- 4. There should be direct appointment or self nomination by natural constituencies, specifically the name, number and protocol councils.
- 5. There should be a restrictive charter.
- 6. There should be clearly defined board members, subject to pre-specified rules and limits on authority.
- 7. The Internet Architecture Board (IAB) and the regional number registries should immediately appoint members to the interim board.
AFTERNOON SESSION: CONSENSUS POINTS
1. The appropriate STARTING POINTS for the protocol and number councils are the Internet Engineering Task Force (IETF) and the existing regional number councils.
2. Questions of board membership must be addressed with regard to composition, representation and segmentation.
3. There should be board members who represent interests beyond those members who represent interests of the three councils.
Reporter's clarification to point 3: "Whether or not the name, number, and protocol councils ultimately select any members of the board, some members of the board should not be appointed by those councils, but by broad-based groups." Despite dominant consensus on this point, a participant from the Asia Pacific region requested that an exception be noted, on the grounds that other characteristics of the board and pertinent conflict of interest issues must be settled before the final naming of its constituents can be decided.
PRESENTATION OF RESULTS
Immediately upon the close of the afternoon session Mr. Weitzel and Mr. Simon prepared a restatement of the agenda and consensus items. They also prepared statements that attempted to consolidate and articulate the significant sentiments and conclusions that could be gleaned from the day's work. Mr. Weitzel delivered those statements to the full body of IFWP participants at the Report Plenary. After the conference Mr. Simon compiled the records into minutes (still in the editing process at the time of this writing) and worked with Mr. Weitzel completing this draft summary for transmission to the online community.
Please note that this is a DRAFT summary. Correction of this record is encouraged and welcomed.
Diane Cabell, Esq, Fausett, Gaeta & Lund, LL.P.
1. The new entity (aka "Newco" or the "Board") should gather and disseminate information regarding disputes involving cyberpirates (cybersquatters) and trademark owners.
Scribe's Note. This is a single category of disputes. The TM/DN Working Group did not reach any consensus concerning imposition of a similar obligation in regard to any other kind of domain name dispute.
2. Newco should recognize that individuals and organizations have concurrent, legitimate rights in names that are not based on trademark.
Scribe's Note. I have reviewed my notes from the Group discussion and want to make it clear that the word "legitimate" was one of the key elements of the consensus. If that word was omitted from the chalk board at the final presentation, it was an oversight on my part.
3. Newco should encourage the development of various rapid alternative dispute mechanisms.
Scribe's Note. This was a rejection of the White Paper's reference to WIPO as the sole dispute resolution administrative procedure. WIPO (World Intellectual Property Organization) is one of many possible mechanisms and it was the consensus of the Trademark/Domain Name Working Group that WIPO should not be the exclusive one.
4. Newco does not resolve trademark/domain name disputes.
5. The Trademark/Domain Names Working Group supports the creation of a Names Council and recommends additional discussion focussed solely on its formation. Some of the functions for which the Names Council should be responsible are:
- a. Handle trademark/domain name interactions
- b. Set minimum standards for the contact data required for domain name registrations
- c. Consider standards of privacy in relation to registration data
- d. Consider issues relating to the protection of Newco from liability based on Newco recommendations/decisions
- e. Make policy recommendations to Newco in regard to domain name disputes
6. The TM/DN Working Group recommends the following processes for Newco decision-making:
- a. Newco should define the responsibilities of the three councils proposed by Day 1 Working Groups: Names Council, Numbers Council and Protocols Council
- b. The councils will define terminology, issues and variables
- c. Councils will gather information from the global community
- d. Councils will prioritize information and issues
- e. Councils may make recommendations to Newco
- f. Newco will have the authority to ratify/approve recommendations
- g. Newco will devise a procedure to re-evaluate decisions and problem issues.
