IP: My written testimony for the House DNS panel today at 2 pm

[Dave Farber <farber () cis upenn edu>]

PREPARED TESTIMONY OF
DAVID J. FARBER
ALFRED FITLER MOORE PROFESSOR OF TELECOMMUNICATION SYSTEMS
OF THE UNIVERSITY OF PENNSYLVANIA
BEFORE THE
SUBCOMMITTEE ON BASIC RESEARCH
OF THE HOUSE COMMITTEE ON SCIENCE
MARCH 31, 1998


Introduction


Mr. Chairman and Members of the Committee, I’d like to thank you for giving
me the opportunity to share my thoughts with you today on the
Adminstration’s "green paper" proposal concerning the transition of the
management of the Internet domain name system to the private sector.  I see
this as a critical issue to the continued growth and viability of the
Internet, and I am pleased that this Subcommittee is taking such an active
part in trying to understand the proper role of the U.S. government in the
administration of key Internet issues such as this.


My interest in this issue, and others related to the health and growth of
the Internet, stems from my almost 30 years of involvement in information
technology issues.  I am the Moore Professor of Telecommunications at the
University of Pennsylvania, where I direct the Center for Communications &
Information Science & Policy.  In addition, I am a member of the
Presidential Advisory Committee on High Performance Computing and
Communications, Information Technology and Next Generation Internet.  I am
a long time member of  the Board of Directors of the Electronic Frontier
Foundation (EFF) and a member of the Board of Trustees of the Internet
Society (ISOC).  I am also a Fellow of the Center for Global Communications
of Japan (GLOCOM).


Even though I am a technologist, my long term involvement with the
Electronic Frontier Foundation has enabled me to clearly see the societal
implications of this new medium.  Therefore, I plan on focusing on four
points during my testimony.  First, Cyberspace transcends national borders.
 Second, decisions made regarding the domain naming system impact the basic
freedoms of Internet users -- a class that will soon include every human
being.  Third, any involvement by governments must recognize that fostering
an open market is in the public’s best interest.  And, finally, any
specific recommendations regarding trademarks or other ownership rights in
domain names must be balanced against the basic human rights to free
expression.


Cyberspace Transcends National Borders


Many issues involving the Internet, including the issue of how to best set
up a domain naming system, must be addressed internationally.  The Internet
enriches us all by allowing us to experience different cultures.  But this
also means that any governance issues involving the Internet must be
resolved on an international scope, taking into account those same cultural
differences.  Any one government’s attempts to control the process will be
frowned upon by the global community as a whole.  And this is a good thing.
 Our world is getting smaller, and we can all benefit and grow from that.


For example, my involvement in GLOCOM and my role as the "Grandfather of
the Japanese Internet" have exposed me to the wide differences in culture
and attitude between the United States and Japan.  In the "real world,"
these differences are often masked by politeness; in Cyberspace, they
become canyons that require the careful building of bridges for us to cross.




Throughout the world, people are fearful that the United States government
will try to dominate the Internet domain naming process.  The Internet was
originally developed in the United States, so it makes sense that the
United States government has played a leadership role in Internet
governance in the past.  However, the Internet is now thoroughly
international, and it is important that the United States government act
responsibly in ensuring that any new Internet governance structure that
emerges is truly international.


Governments seem to have a tendency, when faced with something new like the
Internet, to act to regulate or to slow it until they understand it.  While
there may be problems regarding laws and communities that must be
addressed, it is important that the United States government permit the
Internet to grow and avoid placing unnecessary restrictions on this
important new communications medium.
The Domain Naming System Impacts Basic Freedoms


Any foundation for governance of the Internet should support the
fundamental human rights of free expression, free association, due process,
and nondiscriminatory administration.  While it may not be obvious at a
first glance, the management of the Internet domain naming system impacts
greatly on these basic human rights.  It is through Internet protocol
addresses and domain names that individuals and organizations place their
speech on the Internet, and it is through these addresses that others
locate that speech to read and use it.  It is easy for those responsible
for administering basic Internet functions to lose sight of this basic fact
and unnecessarily burden these important human rights.


For example, Network Solutions (NSI) has imposed "terms of service" that
permit trademark owners to suppress the speech of anyone who uses a
trademarked word as a domain name (apparently to avoid threats by large
trademark holders to sue Network Solutions).  This policy has been abused
dozens of times, for example by Warner Brothers to harass roadrunner.com, a
New Mexico store whose name honors the state bird.  In the latest example,
Prema Toy Co. asked NSI to shut down the web site of a 12-year-old child,
nicknamed "Pokey" all his life due to his overdue birth, who received
pokey.org and some Web software as a birthday present.  I couldn't say it
better than Pokey, so I included a copy of his March 22nd letter in my
printed testimony.  The same Network Solutions policy also gives the
company the right to reject or cancel any domain name at any time, with or
without reason -- a clear violation of due process.  This provision is
likely an attempt by NSI to avoid legal liability.  For example, NSI has an
existing unwritten (and probably unconstitutional) policy of refusing to
register some names with sexual implications.  This inconsistent policy
allowed the registration of "suck.com" for an avant-garde magazine but
refused "pimpshit.com" to a black clothing manufacturer.




NSI is not alone in its failure to address civil rights concerns.  The
Swiss-based Council of Registrars (CORE)'s terms of service include a
requirement that domain name users identify themselves (violating free
association, which sometimes requires anonymity according to the Supreme
Court), provide an address "for service of process" (where they can be
sued), state a reason for registering the name, assert a "bona fide" intent
(whatever that is) to use the name, and volunteer to subject themselves to
court jurisdiction in a potentially inconvenient location.




None of these policies would withstand constitutional scrutiny if applied
to the prospective publishers of books or newspapers.  While Network
Solutions and CORE are not to be commended for these policies, the point is
that any domain name organization would face pressures to adopt similar
self-protective measures (in addition to the usual pressures from those who
would eliminate all opinions but their own). If there is a strong
foundational requirement for free expression and due process in the new
structure of the domain name system, censorial policies are much less
likely to arise, and any such policies could be overruled by courts if
necessary.


Therefore, any governance process established for the Internet should
preserve access to domain names for all Internet users and protect the use
of domain names for all forms of expression and communication.  The
Internet should be administered on principles compatible with, but stronger
than, the United Nations Universal Declaration of Human Rights, which
states in Article 19, "Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers."  The new electronic frontier is no
exception.


An Open Market Is in the Public’s Best Interest
Regarding competition, the green paper states, "The Internet succeeds in
great measure because it is a decentralized system that encourages
innovation and maximizes individual freedom.  Where possible, market
mechanisms that support competition and consumer choice should drive the
technical management of the Internet because they will promote innovation,
preserve diversity, and enhance user choice and satisfaction."  I agree
wholeheartedly.


The Internet is a public trust.  It is a creature born of voluntary
cooperation.  Attempts to monopolize that trust -- to coerce that
cooperation from unwilling participants for private gain -- will destroy
the fragile social fabric that has taken 20 years to build.  Any system of
Internet governance must be created in the public interest -- for the
benefit of the public.  Only in that way will the ongoing cooperation of
the public, which populates the Internet, be likely to continue.  While
there are clearly private entities that engage in communications over the
Internet, the governance must not be monopolized by any private interest.
The United States government should certainly not do anything to create or
encourage a monopoly situation.


Domain name registration and the generic top level domains themselves must
not be monopolized by a single for-profit entity, treated as any for-profit
entity's intellectual property, or controlled by or from within any single
governmental jurisdiction.  These domains have become international and
should not remain a U.S. monopoly.  They are a global public trust and
should not be exploited by profit-seeking companies or for regional advantage.
Each database of domain name information should operate in the public
interest on a cost recovery basis and not for profit.  The administration
of the domain name system and generic top level domain registries must
provide for domain name portability rather than making it difficult or
impossible for a customer to switch registries.  The more portability
designed into the system, the more market choice individual consumers retain.




Domain Name Ownership Rights Must Be Balanced Against the Right to Free
Expression


The current policy of providing ownership rights in Internet domain names
based on trademark registration is flawed and should be abandoned.  No one
group of intellectual property holders' interests should outweigh any other
group's, or outweigh any other rights held by individuals and the public.
The current policy with respect to trademarks and domain names does not
even correctly reflect U.S. trademark law, let alone the laws of other
countries or any emerging international law of trademarks.  The green paper
proposal seems to perpetuate this flawed policy.


Under U.S. law, the First Amendment to the Constitution carries
considerably more weight than the Lanham Act.  Under the current DNS
administration, trademark holders are given greater rights to domain names
than others with legally recognized interests in specific domains.


Even the United States Patents and Trademarks Office (PTO) recognizes that
more than one entity can hold a trademark on the same word, name, or symbol
provided that it is used in completely different business categories.
Failure to provide for multiple uses of the same trademarked character
string in a domain name has resulted in big companies beating up on small
companies and individuals using the same or similar names.


Furthermore, the PTO recognizes that registration of a trademark creates a
right in the mark while the trademark is still pending.  The Internet
policy does not recognize registered but still pending trademarks, and
small companies with pending applications have been bullied into giving up
their domain names by larger companies with similar trademarks.


But most importantly, there are other legitimate uses of words, names and
symbols that have nothing to do with trademarks that get and deserve legal
protection yet are not recognized by the current policy. For example,
Kayvan Sylvan, a man who runs his own computer consulting business,
registered the domain name sylvan.com.  Sylvan Learning Systems, which
holds a trademark on Mr. Sylvan’s last name, threatened to take that domain
name under the current policy.  Mr. Sylvan had to trademark his last name
in a foreign country in order to keep his domain
name!  There are other examples of nontrademarked, yet legal, uses of
terms.  For example, the World Boxing Association might want to use the
domain name knockout.com, even though Hasbro toys has trademarked the term
knockout as the name of a game.  This should be a legally protected use of
a domain name.


Domain names cannot be equated to trademarks or brand names, since the sole
domain name cannot be used by multiple participants to serve their various
non-infringing functions.  Instead, domain names should be distributed on a
first-come, first-served basis, and only if the company that wants a domain
name can prove that the current owner is confusing the customer (i.e.,
McDonald's Hardware decides to get into the fast-food business), could it
then prove trademark infringement. And even then, it would not necessarily
succeed in taking over the domain, just forcing the infringer to stop
infringing on their trademark.




Conclusion


In conclusion, the United States government has a unique opportunity here
to share in the growth and development of this truly democratic
communications tool.  By remembering that Cyberspace transcends national
borders, that decisions made regarding the domain naming system impact the
basic freedoms of Internet users, that fostering an open market is in the
public’s best interest, and that ownership rights in domain names must be
balanced against the basic human rights to free expression, the United
States government will be making a positive contribution to the future of
communications.


Once again, I would like to thank the Subcommittee for giving me the
opportunity to share my thoughts with you today.  Please let me know if I
can provide you with any additional information as you consider this
important issue.


Attachments: 


Letter from Chris Van Allen (a.k.a. “Pokey”), 


http://www.pokey.org/nicletr.html 
Comments of the Electronic Frontier Foundation, 


http://www.eff.org/ 
Comments of the Domain Name Rights Coalition, 


http://www.domain-name.org/petition.html