IP: Mike Doughney's WIPO Speech]

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

Date: Tue, 16 Mar 1999 19:04:32 -0500
I found this interesting reading djf

From: Dan Steinberg <dstein () travel-net com>

As usual, forwarded with permission

Date: Tue, 16 Mar 1999 11:39:03 -0500
From: "Harold Feld" <hfeld () cov com

Few have remarked on last week's WIPO meeting.  Mike Doughney, one of the founding members of DNRC, spoke.  I have 
reproduced Mike's speech below.  While Mike is perhaps most famous in DNS for creating the Peta.org site, he is also 
one of the founders of DIGEX and a pioneer in the online industry.  His comments speak to this experience.
__________________________________
Good morning/afternoon.  My name's Mike Doughney, and I'm speaking as an
individual today.

There are a number of ways in which I could comment on the WIPO
recommendations.

I have personally registered two domain names that have been challenged on
the basis of an allegation of trademark infringement.  One of those domains
is that composed of my own initials, mtd.com.

The WIPO proposal completely fails to address the core issues that resulted
in the challenges to my domain registrations.

The proposal is completely silent about, and grants no protection for, free
speech and social and political commentary.  It also fails to address an
individual's right to use his or her own name or initials as part of a
domain name, even for their own personal, non-commercial website.

In both of these instances, the WIPO proposal, as has the existing NSI
domain name dispute policy, attempt to extend the notion of trademark
infringement, to create a right for trademark holders where none currently
exists.

While I think these are important matters, I'll instead focus most of my
comments on the potential and current impact of domain name policy on small
businesses - a focus of which I have considerable personal experience.

I was the co-founder of an Internet service provider, in the basement of a
Maryland townhouse, in the fall of 1991.

Six years later that company, DIGEX, after going public, was sold - for one
hundred fifty million dollars.

In those days, there was little to nothing said about domain name policy,
except that dot com was commercial, dot org was non-commercial, and you had
better be an Internet Service Provider before you even think about
registering in dot net.

The notion of taking away someone's domain name hadn't surfaced yet.

While we couldn't have realized its value at the time, the domain name that
we chose for our business, in that environment, was stable, a solid
foundation that we could rely on to build our business.

In those times, we didn't live in fear that our domain name registration
might be challenged by someone in California who sold plush toys, or
produced cartoons, or even, a huge communications conglomerate that did both
of those things and wanted to be an Internet provider too.

Today, with the swift growth of the 'net, collisions among registrants and
trademark holders in completely unrelated businesses are inevitable. Between
registrants that have been using the 'net for a decade and huge businesses
that eventually came to realize that the Internet is a medium in which they
must have a presence.

What is of particular value to me, when developing a policy that attempts to
arbitrate these collisions, is the status of the small business.  Of the
entrepreneur who often, in the history of the Internet as in many other
fields, has taken on the daunting task of developing new businesses, of
bringing whole new technologies, ways of communicating and even thinking, to
market.

Whether you're willing to admit it or not, the Internet was cobbled together
by a bunch of renegade entrepreneurs who made this technology work.  We took
a medium that many at the time wouldn't believe could be sold and made it
into a business - right under the noses of huge telecommunications firms.

Today the business of building and selling the Internet infrastructure has
grown up and been absorbed by many of those same firms. Many of the
pioneers, joined by a new generation, have moved from the business of raw
Internet service, to the development of content and new applications.

And those people are as deserving of a stable domain name system as we were.
A system in which those who come first, who have staked their claim, taken
their chances and started a business, can be assured that their registration
will not be pulled out from under them, or must be defended at a cost of
thousands of dollars!

One dispute has recently been brought to my attention, a small Internet
provider has received a domain name challenge from another company that is
located on the other side of the United States, and is in a completely
different business.  They have already spent forty thousand dollars
preparing to defend themselves - the case hasn't even gone to trial yet.

I'm talking about a company with six employees.  Now if my company, when it
had six employees and about two thousand customers, struggling to keep up
with growth, having to decide daily between paying our employees and buying
new equipment, had then to face such a challenge, we would have probably
gone under.

The climate that should be fostered by a domain name policy should be
welcoming and inviting to small businesses, startup companies and
entrepreneurs.  Policy that only facilitates such challenges will only serve
to drive people out of business.

Is this the result that WIPO is expecting?

In these challenges, no one wins.  The challenger, rather than choosing
another name or making a reasonable offer to buy out the registrant, stands
to look like a bully to the general public. The registrant must pay to
defend themselves, and many can hardly afford to pay.  Perhaps only the
lawyers are the only people who win.

Again, is this the result that WIPO is working toward?

I would instead propose that the value in domain names is not that they be
descriptive, but that they be unchanging.   That when a business or
individual registers a name, that the registration be permanent, and
further, that trademark considerations are irrelevant and unconnected to
domain name registrations.

Why, you may be asking, would anyone seriously state such a thing at a
meeting like this?

Because, change is inevitable.  The notion that domain names must carry
relevant information about the product, company or service of the registrant
is already obsolete.  With the growth of the Internet and the Web, the
domain name often becomes useless as a means of finding a business.  I could
name plenty of examples.  Try, for instance, to locate a U.S. newspaper
simply by guessing its domain name.  It doesn't work.

A solution may be found in the next generation of search engines that
measure the relevance of web sites.  I have found one such search engine to
be incredibly accurate when searching for corporations by their well-known
trademarks.

Any search engine, of course, is useless once the sites that it locates are
disabled or removed from the Web.  Re-indexing can take weeks or months,
during that time a relocated business completely loses its visibility on the
Web.

In a meeting I attended yesterday, I witnessed a particular attorney who
says he defends a large corporation's intellectual property precede his
comments about domain name policy with the phrase, "First, do no harm."

I can think of no greater harm that can befall small businesses on the Web
than a scorched-earth policy invented by such attorneys, to defend some
newly created, pseudo-legal concept of trademark infringement.

What I've been watching is the prosecution of people who've done nothing
more than select strings of letters, identifiers that they registered with
the assumption that they would not be taken away from them, that they could
be relied upon as a foundation upon which to do business.

Why are these, largely irrelevant, matches between strings of letters being
prosecuted as a high crime?

Perhaps we're watching the growth of a make-work project for a class of
bullies that target those who are least likely to be able to defend
themselves, in a futile and destructive quest to completely control their
public image.

I personally think such a policy, as embodied in the WIPO proposal, is
beneath the dignity of the legal profession.