Re: A question about protocol

[Kent Crispin <kent@songbird.com>]

Perry E. Metzger allegedly said:
> 
> 
> Kent Crispin writes:
> > I think *everybody* agrees that a 60 day *publication* period is a good
> > idea.  I have yet to see a cogent set of reasons, by a legal person or
> > anyone else, why the DNS should be inactive during that time
> 
> A publication period is meaningless if the name is already in the DNS
> during that time. 

That remains to be seen.  The real issue is how the court interprets 
it, and we don't have that information yet.

The purpose of publication is to place in a public, well-known place
notification of some circumstance, for a fixed period of time.  If
that time elapses, then potentially interested parties lose some
ability to assert their interest, since obviously they weren't 
interested enough to notice.

The distinction at issue is the circumstance being published.  On 
your hand the circumstance is intent to use a domain name, on my hand 
it is use of the domain name.  The publication serves exactly the 
same purpose in either case.


> If so, what distinguishes these 60 days from any
> other 60 days? After all, the information is published forever once
> the name is in the DNS, so what would make the first 60 days
> different?

In my locality, at least, certain newspapers are designated as 
newspapers of record, and publication in those papers counts for 
legal purposes.  Other newspapers are not so distinguished.  There 
must be some process by which a newspaper becomes a paper of record, 
though I don't know what it is.

In the case at hand, for this to work courts will have to recognize
some entity as a publication of record.  Perhaps a web site with all
new domain names would be sufficient, perhaps it wouldn't be.  For
sure, the publication site would have to be labeled and distinguished
as being for the purpose -- I wouldn't think "publication" in DNS
would qualify. 

So the success of the 60 day wait, however construed, really depends
on how courts worldwide view it.  We don't know that.  We have the
opinion of some lawyers that there is some probability that the courts
will interpret it as we wish, but we have no objective measure of that
probability.  Furthermore, no one has presented any data as to what
percentage of domain name activations actually involve trademark
issues.  If 25% of domain activations involve trademark issues, then 
a moderate inconvenience to the remaining 75% is probably justified.  
If, on the other hand, only 1% of domain activations involve 
trademark issues, then I don't think the inconvenience to the 
remaining 99% is worth it.

A few further points:  1) the 60 day wait *and* publication could be 
entirely eliminated.  The court system still functions.  The disputes 
would be resolved.  2) Trademark disputes only stand out because of 
NSI's idiot policy.  If NSI had a rational policy, trademark issues 
would be very much less visible.  3)  At best the 60 day wait only 
helps with some fraction of disputes.  A great many of them will go 
to court anyway.

In all honesty, Perry, this isn't an issue that matters that much to 
me, and, unlike some other parts of the draft, it is an isolated 
policy that could changed later.  However, the case for it is, IMO, 
very weak.

-- 
Kent Crispin				"No reason to get excited",
kent@songbird.com,kc@llnl.gov		the thief he kindly spoke...
PGP fingerprint:   5A 16 DA 04 31 33 40 1E  87 DA 29 02 97 A3 46 2F