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Lord Of Thy Domain

Lord Of Thy Domain

Pay attention. Your online future is being decided for you. While the infighting currently being waged by the dominant parties involved in the development and management of the Internet's Domain Name System (DNS) has been roundly dubbed 'As the Web Turns,' make no mistake about the significance of the outcome. Global issues and mega-sums of money are at stake, not to mention other more ethereal and humanistic considerations.

But these few real life examples only begin to describe the breadth and depth of the decisions and controversies facing the global Internet community. Beyond the fundamental egalitarian question of whether or not the resolution of these issues will be policy- or free-market driven, the very principles of community, stability and freedom will be, if not determined, at least shaped, in the months and years to come.

For now, uncertainty rules. No one knows what is going to happen. Government and corporate entities with vested interests have and will continue to influence Internet policy wherever and whenever they can. It's the voices of the small businessperson and the individual citizen that are straining to be heard, and are often drowned out or lost in cyberspace.

If you are Gateway 2000 Computers and another commercial entity has already legitimately registered Gateway.com and refuses to relinquish, sell, or lease it to you, potentially a great deal of money. If you are a rap artist on the verge of "making it," and the record company that wants to sign you requires that you contractually sign over the rights to your domain name in perpetuity, then possibly your entire artistic identity.

And if you are a boy whose father has registered a site using your nickname, Pokey.org, and the company that represents the creator of the characters Gumby and Pokey wants to take it from you because of perceived trademark dilution, a fundamental principle is at stake.

For adult Webmasters in particular, the situation is a little stickier. According to testimony in congressional subcommittees investigating abusive practices on the Internet, adult sites are often portrayed as parasites that legitimate interests need to be protected from. A common complaint is that an offending adult site will register itself in a name that is so similar to that of a "legitimate" business or organization that consumers will be mislead into believing they are accessing the "legitimate" site when in fact they are going to Smutland.com. While these practices may be the exception, the perception is different.

The future of the internet's Domain Name System is being decided now. Sirin takes a look at who's calling the shots.

The contrary is prevalent, and new legislation (S. 1255) has just been passed by the Senate to outlaw it and other "cybersquatting" scams that threaten to dilute or feed off online commercial trademarks.

But Adult sites certainly do have legitimate commercial interests at stake as well, and the issues facing them are often exactly the same as non-adult sites. In fact, Playboy Enterprises, Inc. (PEI) has already had to go to court to protect its online trademark integrity, and won. And if record companies are successful in their attempts to "own" an artist's domain name, what, in theory, is to prevent a porn producer form exacting the same contractual requirement from an adult performer?

The Root

Today's Internet is a product of the U.S. Government's investments in packet-switched technology and communications networks made more than 25 years ago. These were carried out under agreements with the Department of Defense's Advanced Research Projects Agency (DARPA), the National Science Foundation (NSF) and other U.S. research agencies.

During the 1970s, DARPA funded the development of a "network of networks," which became known as the Internet, and the protocols that allowed the networks to intercommunicate became known as Internet Protocols (IP). Internet protocol numbers (e.g., 98.37.241.30) serve as routing addresses on the Internet. Because it would be difficult if not impossible to remember protocol numbers, domain names were established as the familiar and easy-to-remember names (or addresses) for Internet computers. The Domain Name System (DNS) translates Internet names into the IP numbers needed for transmission of information across the network.

Up until the early 1980s, the Internet was managed by DARPA, and used primarily for research and education purposes, but also with some military applications. In 1991-1992, the NSF assumed responsibility for coordinating and funding the management of the non-military portion of the Internet infrastructure. On December 31, 1992, the NSF entered into a five year Cooperative Agreement (since extended to September 30, 2000) with Network Solutions, Inc. (NSI) for some of those services, including domain name registration. Since that time, NSI has had a virtual monopoly on the registration, coordination and maintenance of the .com, .net, .org General Top Level Domains (gTLDs), registering them on a first come, first served basis, as well as maintaining a directory linking domain names with the IP numbers of domain name servers. It also currently maintains the authoritative database of Internet registrations, known as the WHOIS directory.

The foundation of the Internet is in the root server system, a set of thirteen file servers which together contain authoritative databases listing all TLDs. Universal name consistency cannot be guaranteed without a set of consistent roots, without which messages could not be routed with any certainty to an intended address. Currently, NSI operates the "A" root server, which maintains the authoritative root database and replicates changes to the othe root servers on a daily basis.

The Major Players

The Department Of Commerce

On July 1, 1997, in response to complaints from consumers and businesses around the world concerning the absence of competition in the lucrative domain name registration market, President Clinton directed the Secretary of Commerce to privatize management of the DNS. During the following year, according to a National Telecommunications and Information Administration (NTIA) statement of policy, The Department of Commerce (DOC) solicited public and professional input relating to the overall framework of the DNS administration, the creation of new top level domains, policies for domain name registrars, and trademark issues.

On June 5, 1998, DOC issued a statement of policy entitled Management of Internet Names and Addresses (the "White Paper"). The White Paper called upon the private sector to create a new, not-for-profit corporation to assume responsibility for the management of certain aspects of the DNS. It identified four specific functions to be performed by this new corporation, which would act "much like a private standard-setting body.":

1) To set policy for and direct the allocation of Internet protocol number blocks;

2) To develop overall policy guidelines and control of top level domains and the Internet root server system;

3) To develop policies for the addition, allocation, and management of gTLDs, the establishment of domain name registries and domain name registrars and the terms, including licensing terms, applicable to new and existing gTLDs and registries under which registries, registrars, and gTLDs are permitted to operate;

4) To coordinate maintenance and dissemination of the protocol parameters for Internet addressing.

The White paper also articulated the principles that would guide the United States' participation in the transfer of DNS management responsibility to the private sector: stability; competition; private, bottom-up coordination; global representation. It also enumerated four tasks that were to be undertaken on a priority basis:

1) The creation of the new not-for-profit corporation, with anticipated interim Board of Directors. The interim board was to establish a system for electing a Board of Directors and to complete its organization in accordance with the White Paper principles.

2) The rapid introduction of competition in the provision of domain name registration services, and the development of policies for the introductionof new TLDs. The DOC would also enter into an agreement with NSI regarding commitments to pricing and equal access, designed to permit the development of competition in domain name registration.

3) The prompt introduction by the new corporation of specific policies designed to reduce conflicts between trademark holders and domain name registrants.

4) A commitment to undertake a review of the root server system to recommend means to increase security and professional management of the system.

The new not-for profit corporation is called ICANN.

ICANN

Headquartered in Los Angeles, The Internet Corporation for Assigned Names and Numbers (ICANN) was formed in October 1998. According to its fact sheet, it represents a broad coalition of the Internet's business, technical and academic communities, designated by the U.S. government to serve as the global consensus entity to which the U.S. Government is transferring responsibility for the four above mentioned key functions for the Internet. ICANN's mandate is not to run the Internet, but rather to facilitate the coordination and management of only those specific tasks that require central management.

The current organizational structure of ICANN is a little mind-boggling. Besides the Board's interim chairperson, there are nine Directors drawn from six nations from around the world. Four different Internet constituency groups (three Supporting Organizations and At-Large Membership) will choose the elected board members that will replace the interim board.

Network Solutions, Inc.

Founded in 1979, headquartered in Herndon, Virginia, NSI is a public company providing commercial and technical services to individuals and companies tying to establish a presence on the Web. Since 1992, they have also enjoyed an exclusive agreement with the U.S. Government allowing them to register domain names in the .com, .net and .org domains. They have also been responsible for maintaining a registry of domain names as well as the technical maintenance of the root server. This exclusivity has made them rich and the object of almost universal scorn. The main area of complaint has been with NSI's domain resolution dispute policies, of which there have been five variations in seven years, the last of which became effective November 25, 1998. Critics claim that they are biased in favor of trademark owners over non-trademarked entities, commercial or otherwise, that still have legitimate rights to their properly registered domain names.

In October 1998, the DOC amended (Amendment No. 11) its Cooperative Agreement with NSI pursuant to the mandates of the White Paper. NSI was directed to "develop a protocol and associated software supporting a system that permits multiple registrars to provide registration services within the registry. This was to be called the Shared Registration System (SRS). In April 1999, the test bed phase of the SRS was initiated . Five test bed registrars, accredited by ICANN to register domain names, are now in operation and doing business. The test bed phase was to have been completed by June of this year, but has been extended several times while NSI, ICANN and DOC have been conducting negotiations to resolve areas of disagreement.

The Terms Of Agreement

Although the transition from domain name registration monopoly to open competition is moving forward full-tilt, there seems to be far more critique than consensus among the people and organizations that are involved. The full scope of the dissension was perhaps best articulated during a few days of testimony before two House subcommittees in July of this year.

On July 28, 1999 a Judiciary Subcommittee on Courts and Intellectual Property convened to determine "Who should control the enormous international database on Internet addresses (or domain names) for every Web page on the Net," what to do about cybersquatters, and in general, who will protect America's intellectual property interests? According to a subcommittee news advisory, "The DOC has tapped ICANN... to oversee the current transition... However, NSI... hasn't agreed to abide by all of ICAAN's rules. This creates an uncertain future for domain name registration that could harm intellectual property owners. There is [also] question as to the reliability and even ownership of the Internet's giant "Whois" database of contact information for every single Web page in the world."

Whois

Reliable and unrestricted access to the Whois database is crucial to trademark owners. Without it, they are unable to police the integrity of their marks. NSI's consistent position to this day is that, under the provisions of the Cooperative Agreement, they own the Whois database, and will continue to own it after the Cooperative Agreement terminates on September 30, 2000. It's a position that infuriates many. "It's an anti-competitive thing they've done and clearly they aren't entitled to it," said Jeff Field, president and CEO of ICANN-accredited registrar Namesecure.com.

According to testimony by Andrew Pincus, DOC's general counsel, "The Commerce Department believes just as strongly that NSI does not have the legal right to operate these domains in the authoritative root in perpetuity. We believe that all or part of the functions now performed by NSI under the Cooperative Agreement could be reassigned through a competition and, unless NSI won the competition and, unless NSI won the competition, it would cease to have any legal right to provide the recompeted services." Clearly, unless NSI backs down from its position, courts will decide this crucial aspect of domain name management.

Dispute Resolution Policies

This area of dispute also involves trademark and intellectual property issues, and everyone who has or will ever consider putting up a Website should be concerned about how it is resolved. With the 7 million or so domain names now in existence, the percentage of domain names in dispute is relatively insignificant. But with an anticipated 100 million domain names yet to come worldwide, as with all three examples mentioned at the top of the article, conflicts have and will continue to exist. The policies that come out of the current negotiations will be the foundational principles that help to determine everyone's cyber-rights in the future.

The difficulty will be maintaining a level playing field. Balancing the concerns of trademark owners, who believe that the Internet is just another medium reflecting the real world marketplace, with the rights of individuals who may have been using a domain name for years until confronted by a trademark owner who claims a right to it. But what if two trademarked companies with identical names want the same domain name? No resolution policy will ever be able to resolve those disputes. The courts will be very busy.

ICANN vs. NSI

NSI believes that ICANN is "off track" and refuses to recognize them. On July 22, in testimony before a House subcommittee on Oversight and Investigation, Jim Rutt, NSI's CEO, enumerated five areas for concern. Two have since been resolved: ICANN's levying of an unauthorized mandatory $1 "tax" on new domain names, since rescinded and closed board meetings, now open. The last three are the subjects of current negotiations.

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Tom Hymes

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