May 2011 - At-Large - lists.icann.org

Re: [At-Large] Privacy and domain abuse vs the IP constituency
by Eric Brunner-Williams May 8, 2011

May 8, 2011

In the context of the Post Delegation Dispute Resolution Process (PDDRP), the World Intellectual Property Organization (WIPO) made a comment (attached) which, while registry operator specific, has a bearing upon the issue. The WIPO proposal, if adopted, would hold a registry operator accountable for trademark infringement that occurs within a TLD if it "knowingly permitted, or could not have reasonably been unaware of" infringing domain names within the TLD. This is sometimes referred to as "Willful Blindness" and is used by trademark owners to hold third parties liable for contributory trademark infringement. Support for this proposal came from the International Trademark Association, the Intellectual Property Constituency of ICANN, the International Olympic Committee and other trademark owners and associations. Quoting from Jeff Neuman's note to the Temporary Drafting Group Legal (tdg-legal) mailing list of May 5th, 2010: "In the United States, with respect to whether or not domain name registries and registrars can be liable for contributory trademark infringement is well settled. The 1999 case of Lockheed Martin v. Network Solutions [1] controls. In that case, the United States Court of Appeals for the Ninth Circuit found that Network Solutions was not liable to Lockheed Martin for contributory infringement as a matter of law because it was acting merely as a domain name registrar in registering domain names. More specifically, it found that in order for a service provider to be liable under the doctrine of contributory infringement, the service provider must exercise sufficient control over the infringing conduct itself. See also Tiffany v. Ebay [2] decided on April 1, 2010. If a trademark owner cannot establish that a service provider has sufficient control over the infringing conduct, then whether or not the service provider knew, should have known or turned a blind eye towards the infringing conduct, is irrelevant." I suggest that asking the set of registrars which currently control the Registrar Stakeholder Group's (RrSG) process if they would like a registrar to held accountable for trademark infringement that occurs within the TLDs it provides registrations if it "knowingly permitted, or could not have reasonably been unaware of" infringing domain names for which it is the registrar of record would have a similar outcome to that provided by the set of registries which currently control the RySG process. A defect in the argument offered by NeuStar to the WIPO proposal that wilfull blindness should be the sole basis for direct or contributory infringement was shown by the authors of the .C variant of the Conficker distributed system. The .C variant attempted to create rendezvous points (domain names) in more than one namespace. The proper scope of the issue is not the isolated affirmative acts of any contracted party, but what contracted parties can reasonably know. The NeuStar defense, if applied to the .C fact pattern, would hold a registry operator or registrar immune from any claim arising from the registry operator's or registrar's failure to block the portion of the algorithmically predicted rendezvous point buys over which the registry operator or registrar has control by the .C attack engine for command and control purposes of a botnet consisting of hundreds of thousands of covertly repurposed computors, if the immediate conduct of the .C system was trademark infringement, aka "cybersquatting". What registry operators can reasonably know, having access to their own, and any and all other gTLD zone files through the zone file bulk access right, is patterns of registration utilizing one or more registrars, and one or more namespaces. I believe that that is the expectation of Derek Smythe. The issue of contracted party conduct and liability, under national law or private contract, is not new, and my participation in an ALAC regional organization is a few weeks short of six months, so I have little idea of prior deliberation on the issue by ALAC or its regional organizations. However, the interest of the contracted parties, or rather, those amongst the contracted parties which manage to be influential on issues which potentially affect their pecuniary interests should not be limiting, nor should any particular national law, on the deliberation of what is in the public interest, by the ALAC. I think a useful and interesting "step" to take, one not in the direction of "WHOIS", is determining what pattern(s) of conduct, by a contracted party, rises to the level of "wilfull blindness", where ever there is a public interest. This necessarily includes the area of trademark infringement. This would form a basis for advice the ALAC may provide. Eric [1] http://scholar.google.com/scholar_case?case=15162974496362566611&q=194+F.3d… [2] http://www.ca2.uscourts.gov/decisions/isysquery/65a5a693-7086-4d06-a0d2-13e…

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Keynote Remarks from Larry Strickling - supports multi-stakeholder model
by Olivier MJ Crepin-Leblond May 8, 2011

May 8, 2011

*Keynote Remarks by Lawrence E. Strickling* *Assistant Secretary of Commerce for Communications and Information* *Global Internet Governance Academic Network (GigaNet) * *Washington, DC* *May 5, 2011* http://www.ntia.doc.gov/presentations/2011/Strickling_GigaNet_05052011.html Some of the content might greatly affect that will happen in Singapore. Kind regards, Olivier

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Weekly posting summary for at-large@atlarge-lists.icann.org
by Thomas Narten May 6, 2011

May 6, 2011

Total of 15 messages in the last 7 days. script run at: Fri May 6 00:53:03 EDT 2011 Messages | Bytes | Who --------+------+--------+----------+------------------------ 20.00% | 3 | 18.22% | 16664 | carlton.samuels at gmail.com 13.33% | 2 | 17.39% | 15896 | avc at avc.vc 13.33% | 2 | 9.91% | 9062 | ebw at abenaki.wabanaki.net 6.67% | 1 | 9.45% | 8644 | isolatedn at gmail.com 6.67% | 1 | 7.70% | 7045 | cintra.sooknanan at gmail.com 6.67% | 1 | 7.29% | 6668 | joly at punkcast.com 6.67% | 1 | 6.66% | 6087 | avc at namesatwork.com 6.67% | 1 | 6.36% | 5813 | omar at kaminski.adv.br 6.67% | 1 | 6.00% | 5487 | narten at us.ibm.com 6.67% | 1 | 5.82% | 5320 | avri at acm.org 6.67% | 1 | 5.19% | 4749 | karl at cavebear.com --------+------+--------+----------+------------------------ 100.00% | 15 |100.00% | 91435 | Total

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ICANN Generic Top-Level Domains (gTLD) Oversight Hearing
by Eric Brunner-Williams May 4, 2011

May 4, 2011

Colleagues, The House Judiciary Committee's Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing on: "ICANN Generic Top-Level Domains (gTLD) Oversight Hearing", on Wednesday 5/4/2011 - 10:00 a.m., at 2141 Rayburn House Office Building. There is, as yet, no hearing documentation and no witness list, though these will be forthcoming. http://judiciary.house.gov/hearings/hear_05022011.html I'll post a follow-up when either hearings documentation or witnesses are posted at the Subcommittee's web site. Eric

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Tomorrow: Cyrus Farivar – The Internet of Elsewhere - NYU
by Joly MacFie May 4, 2011

May 4, 2011

You may have seen the recent Freedom House report on Internet Freedom that cited Estonia as the most free Internet in the world, and Iran as among the least. As we know Korea has some of the fastest, while Senegal is rapidly developing. SO this should be an interesting talk about the contrasts.. As noted we do intend to webcast live. Please fwd. J On May 4 2011 the Internet Society’s New York Chapter (ISOC-NY) will present broadcaster, author & journalist Cyrus Farivar reading and discussing his imminent (May 8 ) book ‘The Internet of Elsewhere<http://internetofelsewhere.com/blog/>‘ (Rutgers University Press). All welcome. There will be a live webcast. In the book Farivar explores the Internet’s history and effects in four distinct and, to some, surprising societies — Iran, Estonia, South Korea, and Senegal. He profiles Web pioneers in these countries and, at the same time, surveys the environments in which they each work. After all, contends Farivar, despite California’s great success in creating the Internet and spawning companies like Apple and Google, in some areas the United States is still years behind other nations. *What*: Cyrus Farivar – The Internet of Elsewhere *When*: Wednesday 4 May 2011 7pm-9pm EDT (1100-0100 UTC) *Where*: Warren Weaver Hall, rm 201, 251 Mercer Street, NY NY 10012 *Who*: Free. All welcome. Capacity limited. No RSVP reqd. *Webcast*: http://livestream.com/internetsocietychapters *Hashtags*: #isocny <http://search.twitter.com/search?q=isocny>; #farivar<http://search.twitter.com/search?q=farivar> *Back Channel*: http://backchan.nl/meetings/view/786 -- --------------------------------------------------------------- Joly MacFie 218 565 9365 Skype:punkcast WWWhatsup NYC - http://wwwhatsup.com http://pinstand.com - http://punkcast.com VP (Admin) - ISOC-NY - http://isoc-ny.org -------------------------------------------------------------- - -- --------------------------------------------------------------- Joly MacFie 218 565 9365 Skype:punkcast WWWhatsup NYC - http://wwwhatsup.com http://pinstand.com - http://punkcast.com VP (Admin) - ISOC-NY - http://isoc-ny.org -------------------------------------------------------------- - -- --------------------------------------------------------------- Joly MacFie 218 565 9365 Skype:punkcast WWWhatsup NYC - http://wwwhatsup.com http://pinstand.com - http://punkcast.com VP (Admin) - ISOC-NY - http://isoc-ny.org -------------------------------------------------------------- -

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Re: [At-Large] [NA-Discuss] ICANN Generic Top-Level Domains (gTLD) Oversight Hearing
by Eric Brunner-Williams May 3, 2011

May 3, 2011

I rarely have the opportunity to agree with Antony van Couvering, so after a quick glance at his post on CircleID [1] I concur with it in all parts, though I would have attempted to address the difference of venue -- a subcommittee of the House Judiciary Committee rather than a subcommittee of the House Commerce Committee. Yes, it is a stacked deck, that's pretty much a given going in. And a concise comment is what I've in mind. Eric [1] http://www.circleid.com/posts/2011050_intellectual_property_interests_lineu…

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WHOIS Review Team Followup Meeting
by Carlton Samuels May 3, 2011

May 3, 2011

Dear All: You would have by now be aware that a WHOIS Review Team was announced. Public comments on specific areas of its mandate are being solicited thru April 17, 2011. See http://icann.org/en/public-comment/#whois-rt Your feedback was also solicited before and after the ALAC developed and posted its Statement on the WHOIS Review Team in response to these Terms of Reference reflected in the public announcement. See: https://community.icann.org/display/alacpolicydev/ALAC+Statement+on+the+Who… The WHOIS Review Team has proposed a followup meeting with the At-Large for Singapore. Your further inputs are now being solicited for representation at this meeting. You may send your comments directly to the At-Large WHOIS WG list at whois-wg(a)atlarge-lists.icann.org. Kind regards, Carlton Samuels Chair, WHOIS WG ============================== Carlton A Samuels Mobile: 876-818-1799 *Strategy, Planning, Governance, Assessment & Turnaround* =============================

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