### 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 TABLE OF CONTENTS Summary 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 SUMMARY 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 Principles 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 managed. 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 out. 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 time. 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, robust, 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 these 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 people. 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 values. 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 work. 2. A clear and understood structure of international governance into which the domain name registration system can be fitted is essential to improvement. 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, standard- setting processes, spectrum allocation)? Are there private/public sector administered models or regimes that can be used for domain name registration (e.g., network numbering plan, standard setting processes, or spectrum allocation processes)? What is the proper role of national or international governmental/non- 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 from circulation? Should geographic or country codes (e.g., .US) be required? If so, what should happen to the .com registry? Are gTLD management issues separable from questions about International Standards Organization (ISO) country code domains? 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 gTLDs? 13. Are gTLD management issues separable from questions about ISO country 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 name registrars? 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 trademarks, 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 standards 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 trademark owner notified of the conflict? Automatic referral to dispute settlement? 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 such 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 information resources (e.g. databases of registered domain names, registered trademarks, trade names) could help reduce potential conflicts? If there should be a database(s), who should create the database(s)? How should such a database(s) be used? 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 designated. 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 criteria? 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