Re: Thread 2: 60-day issue

[Einar Stefferud <stef@nma.com>]

Hi Scott -- Thanks for alerting me to the IAHC discussion on a 60-day
waiting period.  I had somehow managed to convince myself that the
IAHC would not repeat the mistakes made over the last decade by ANSI
in its efforts to establish a registration authority for OSI X.500
Directory Distinguished Names and X.400 ADMD And PRMD names. 

Hopefully we can head off this possibility;-)...

This is a rather long (Shaggy) Name Registration Story.

The ANSI OSI Name Registration process had (has) a 3 month waiting
period, which was intended to provide some assurance that when the
waiting period was over, the applicant would have established a real
"right" to the use of the registered name.

I spent about 4 years helping to work on the whole thing a a member of
the Working Group that designed the process, and then several more
years as a member of the ANSI RAC (Registration Autority Committee),
and finally came to realize that the entire mess was of no earthly use
in establishing "rights to use" for anyone because in the end, the
courts will decide any dispute that can not be otherwise resolved,
regardless of what the ANSI Registration Processes tried to establish.

There is nothing (that I know of as a non-lawyer) in law that
establishes (or even suggests) that any arbitrary waiting period
unilaterally set up by some arbitrary group can establish any rights
to any names.

To be effective, any such waiting period must be established and
enforced with laws (common or enacted), and Intellectual Property Law
does not now authorize autonomous bodies to authorize the use of names
by means of declaring some kind of waiting period during which
potentially affected parties are supposed to monitor some published
list of register applications.

Thus, any registration authority must always bow to legal actions
taken by any court with legitimate jurisdiction, regardless of what
procedures might have been used to vet any name in any application for
any registration.

To fully and viscerally grasp the significance of all that I am
saying, consider arranging for your own company to set up a register,
and offer as registrar to guarantee the right to use any name for
anyone who applies, if the registration goes uncontested for 90 days
(or 60 days, or N days), during which time you publish the name in a
private publication that is only available to paid subscribers; Or
even if you publish it in some public space, like the DNS.

While you are considering this, you might ask ANSI how much it costs
to subscribe the "STANDARDS ACTION" (or whatever ANSI publication it
is where they publish their OSI application names).  I shoudl also
note that ANSI has always been afraid of litigation, and thus they
charge $2500 for each registered name, paid once, in advance, for
perpetual care.

All this experience is what led me to strongly and privately urge NSI
(and NSF) to back away from trying to make judgements and help the
courts to enforce Intellectual Property Rights in the use of DNS
names.  My proposal was that they employ "interpleading" in place of
acting on behalf of the courts without legal basis.  I had somehow
gotten the idea that they took my advice, but perhaps not, as I read
this "60-day" thread.

As I understand "interpleading", it consists of a registrar agreeing
with the courts that the courts have jurisdiction, and that the
registrar will simply do as the courts may direct, or do what the
litigants agree among themselves that the registrar should do.  In
short, they should not presume to judge one "right-to-use" of a name
as being better than some other claimed "right-to-use" for the same
name.

By attempting to make such judgements, the Registrar can only get in
line for law suits because of its judgements, and in the meantime,
only lay waste to the namespaces that they are trying to serve.  Thsi
is precisely the NSI experience as I read the ashes.

I think that the legal princples of "interpleading" make all waiting
periods pointless, since there is no time law based limitation of the
right to litigate over name use rights just because someone has not
reponded in some arbitrary period to some privately published fact of
application for registration of some name in some published register.

But, methinks I might be repeating myself here;-)...  
Surely by now you get the point I want to make;-)...

Hava A Great New Year!...\Stef