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    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)

    This discussion has been archived. No new comments can be posted.
    ICANN Rips VeriSign Over Whois Violations | Log in/Create an Account | Top | 70 comments | Search Discussion
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    Re: You are wrong
    by Anonymous on Wednesday September 04 2002, @06:36AM (#9022)
    Maybe in Canada this kind of information can be kept private, but Whois information has been kept open for valid reasons. You said that the information should be available if requested by a UDRP panel, well, how is a mark owner able to put the registrant on notice of its bad faith if it cannot locate or contact the individual. Many cases go away before being brought to the UDRP stage because registrants admit they are wrong after receiving a cease and desist letter. Frequently, a response to a cease and desist letter will also result in evidence of bad faith, if the respondent offers the name for sale or makes other comments about the mark.

    fnord, your argument is wrong. ICANN should take a strong stand against false information in Whois.
    [ Reply to This | Parent ]
    Re: You are wrong by Anonymous
    Re: You are wrong
    by fnord (groy2kNO@SPAMyahoo.com) on Thursday September 05 2002, @12:35AM (#9041)
    User #2810 Info
    Anonymous writes:
    how is a mark owner able to put the registrant on notice of its bad faith if it cannot locate or contact the individual.
    See the .ws WHOIS. They've got it set up so that only the registrant's name is displayed and you can then use a form to contact the owner if you are alleging trademark infringement. Why wouldn't that work?
    Many cases go away before being brought to the UDRP stage because registrants admit they are wrong after receiving a cease and desist letter.
    Or they get intimidated into giving up a name that by any real world law they should not have to give up. The hardcore squatters aren't going to be intimidated by that anyway, and you know it.
    fnord, your argument is wrong.
    Sorry, you'll have to do better than that. Where and how is it wrong? Such blanket absolutist statements sound like the divine right argument of Jonathan Cohen at Accra about what intellectual property has to do with the technical co-ordination of the internet: We're in the White Paper, end of story. Ya, well so was an elected at large, so what's the real story?
    ICANN should take a strong stand against false information in Whois.
    As a computer programmer and someone who otherwise creates unique material I don't like getting ripped off any more than anyone else, it has happened to me numerous times, including in the realm of domain names. But the IP folks are going overboard, you don't speak for me, you just look like technically (and otherwise) clueless bullies. If you can't find the squatter neither can anyone else, so what harm is being caused? (S)he can't make money off you without contact, and (s)he can't offer the domain for sale to anyone else. No harm, no foul.

    Look at what happened away back in 1998. Playboy sued and won a $3 million judgement regarding others using their trademarked terms in HTML metatags. They probably never collected, or even found the defendants, but you can bet a helluva lot of sites were subsequently removing such terms from their metatags. If the expensive lawyers feeding from the IP trough had recommended that a few cybersquatters be gone after in like fashion back then, we'd have nowhere near the problems we do now. If the IP folks put together a warchest and did it even now it would go a long way towards curing the problem. Instead they get ICANN's ear and get the UDRP, get the same unpredictable, inconsistent results no-one else likes either, and the main perpetrators just get smarter and use each new ruling (for either party) to come up with new stratagems to further shield themselves. It's a losing battle.

    So, no, I don't think ICANN should take a strong stand on the WHOIS just because some lazy and/or uncreative IP protectors can't get their act together. OTOH, in the larger picture I hope ICANN does take such a strong stand because it will just lead to more migration to the ccTLDs, making them stronger and ICANN weaker. And making the IP folks have to fight battles all over the planet that will have no consistent winner and no end in sight.

    The IP folks were slow to see the danger and register their treasured names in the first place, then they spent their time and money trying to turn ICANN into the character string police, when they could have struck decisively (and perhaps still could, albeit less decisively) using existing law. They didn't listen to anyone else throughout this process, they thought they knew best, they still do, and they're still losing. Sorry, I don't have any sympathy for them. -g

    [ Reply to This | Parent ]
    Re: You are wrong
    by Anonymous on Monday September 09 2002, @01:18PM (#9131)
    You can say anything you like in private. When you set up a publishing concern, such as a magazine or web site, you're often required to identify yourself, because what you publish could massively affect other people. A newspaper may publish anonymous accounts, but the publisher is not anonymous, and may be held accountable.

    Domain names are used to publish on the web. The very nature of publication is that it is communication to the public. There is a generally accepted need for parties about whom material is published to have some minimal knowledge of who is publishing the material. The DMCA indemnifies ISPs from publication torts. If there is no accountability for whois data, then you get a situation where libel, defamation, harassment and invasion of privacy are happening, but you cannot find anyone to hold accountable. Although Congress envisioned ISPs having strong takedown policies, ISPs are using their DMCA indemnification from publication torts as a "license to libel," and becoming the de facto publishers of scurrilous material which no non-indemnified publisher would touch with a ten foot pole.

    Therefore, any steps which ICANN takes toward accuracy in whois data will help people being stalked and victimized by anonymous web publishers of scurrilous material.

    The thing is, we also need some kind of freeze on transfers during the 15-day correction period. Otherwise when scofflaws receive notice that they must correct their data with Registrar A, they can simply transfer to Registrar B, and so on. I believe this is going on.

    The libel laws and similar laws don't just protect mega corporations, they also protect small non-profit organizations and relatively powerless individual humans from harassment by vicious sociopaths. I know of at least one entry on Touton's list of 17 domains which has been a source of considerable emotional pain within one small community. The registant is anonymous and the ISP is indemnified by the DMCA, so it's like daily torture when a sadist publishes scurrilous material.

    Arbitration proceedings are of limited effectiveness because, although they are cheaper than court actions, their scope is extemely limited. You can plunk down $1500 to take away one domain registered in bad faith, but the day after the decision in your favor, the same person can register a variant on the same domain for under $10. It takes a court action to get a permanent injunction, but an injunction against John Doe isn't going to do you much good. You need to be able to identify the person publishing the material.

    A person who is concerned about privacy can have a responsible third party register for them. But when people cannot find anyone willing to front for the kind of material they want to publish, it's often because that material is NOT protected speech, but is rather speech of a type which is libelous, harassing, etc.

    Publishing on the web is not a private act, and therefore not all rights which apply to private conduct apply to web publishing. The dissemination of material to the public en masse is governed by rules which hold the publisher to certain minimal standards, one of which may be to identify himself. The imposition of this minimal standard on web publishing does not significantly abridge people's basic rights to self-expression, it merely balances those rights with the rights of other parties who may be adversely affected by the material published.

    MIchael Howard
    [ Reply to This | Parent ]

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