Re: Special Report on Internet Governance Published

["Robert L. Shearing" <robert@priori.net>]

At 11:11 AM 8/3/97 -0700, Dave Crocker wrote:

>	ITU gets to hold the documents, to publicize them, and to acquire
>signatories.  For this it gets a vote on the POC.  

This is far from an obvious tradeoff.  Does the Secretary of a corporation,
or the Secretary for the Joint Chiefs of Staff, for example, typically get
a vote on substantive issues?  There are a limited number of seats on the
POC.  Why should one of them automatically go to the entity that "hold(s)
the documents..."?
>
>	The ITU's acting as a depository means that the ITU staff did a review of
>the MoU and found it worthy.  That's a quality assurance stamp of
>considerable benefit.  While many of us from the Internet community have
>very strong and good cause for unhappiness about the ITU, we need to
>remember that the larger world has many who find the ITU involvement to ADD
>credibility.

I personally believe that the gTLD-MOU would be a lot closer to gaining
consensus if it didn't have this particular quality assurance stamp.  The
ITU doesn't have a track record of facilitating the creation of an
affordable, ubiquitous Global Internet.  Of course, neither does anybody
else, really...The Internet is breaking new ground in many ways.  

Nonetheless, it still typically costs dollars per minute (or nearly so) for
international voice calls, an area as much in the purview of the ITU as
anything else.  Whether or not the ITU is really responsible for this in
any significant respect, the fact is that the Internet will not achieve its
potential unless the sorts of governance issues being addressed currently
are handled more effectively than they have been in other areas of
telecommunications, including those where the ITU has been most active.  
>
>>..., the consequences of its failing to
>>cooperate would impact NSI so negatively that it is hard to imagine that
>>NSI would resist.
>
>	One assumes and hopes that you are right.  I've heard that various NSI and
>SAIC senior executives have stated strongly that they do not want to be
>responsible for fragmenting the net.

NSI obviously has its own set of interests in this debate.  The trick is to
get a rough consensus among the other remaining stakeholders in Internet
governance.  If such a consensus emerges, the NSIs of the world will have
little choice but to go along with it and pursue whatever opportunities are
available under the terms of that consensus.  
>
>	Actions which fundamentally fragment the DNS are not going to be taken
>because none of the principal parties in this drama are that irresponsible,
>no matter how vigorously one or another may pursue a position.  I do not
>claim to know what specific actions will be taken to avoid such a
>fragmentation but it is very clear that a number of parties have
>significant leverage and they will use it to ensure continued and
>integrated operation.

What makes the present situation so volatile is that some very significant
policy changes will have to be implemented by March, 1998 or thereabouts.
Either that or a consensus will have to emerge to permit the present NSI
monopoly to continue, and I suspect that is very unlikely.  There is not a
lot of history to show what happens when such large changes in Internet
governance have to be made in such a short time in an environment where
there is no consensus at all on what those changes should be.  It's just
not clear that any parties, including the IANA, have enough leverage to
ensure continued and integrated operation without at least a rough
consensus.  My hope is that interested parties will recognize this and do
whatever it takes to get that rough consensus.  
>
>>.... Now if you ask what reason the IAHC has for
>>bringing these international regulatory bodies into play in the field of
>>Internet governance, it is the because existence of top level domain names
>>that transcend national boundaries. Get rid of top level domains including
>>.com by placing .com under.us and you take away the international aspect
>>of the crisis that allows ISOC, inadvertently or not, to bring the noses
>>of the ITU, INTA, and WIPO camels under the Internet tent.
>
>	The real irony to the above interpretation of ITU/INTA/WIPO involvement is
>that during the IAHC discussions, the representatives from those
>organizations suggested eliminating gTLDs.  They were quite comfortable
>with displacing 1 million+ users who already have established practise
>using a gTLD.  Those of us from the Internet side observed that such
>displacement was 1) rather unfriendly, and 2) quite procrustean.

This statement is not exactly an endorsement of the roles of these
organizations on the IAHC.  In fact, I submit that taking away the
guaranteed seats of these organizations is the single option available to
the POC that would do the most to move forward the process of reaching for
rough consensus.  Whatever means are used to select members of the POC or
its equivalent, organizations like these should have to compete with other
interested parties for seats under an impartial set of rules.  There are
many, many stakeholders in this debate with at least as strong a claim to a
seat at the table as these organizations.  And I'm not referring to the
large table but the small one that inevitably exists in an organization of
this nature.
>
>	In truth, the current situation with the DNS is not a transition from
>horses to cars.  It is a) adding more names, as has been done many times
>before, b) moving from monopoly to competition,

I wouldn't underestimate the difficulty of b).  As an obvious example, take
a look at the process of moving from monopoly to competition in the local
exchange market.  True, there are many reasons to anticipate a smoother
transition here, but it is not something that can be taken for granted.  
>
>>Now we will note that the role of the ITU as the holder of MoU signatories
>>seems to us not to indicate an immediate threat of an ITU take over of the
>>Internet. However, some may say it will be the first step in a process
>
>	Some will say.  Somebody, somewhere said something bad.
>
>	Let's try to focus on real and concrete issues rather than this continuing
>campaign of FUD opponents like to pursue.  Look at the history of the ITU
>in this space.  It has not done a very good job of garnering power, now has
>it?  Has the ITU suddenly become vastly more clever?

As it stands today, the ITU has secured, ostensibly in perpetuity, one of a
limited number of seats at the POC table.  Many other interested parties
would very much like to be in such a position, and such a position
certainly does represent power.  So I'd argue that in this particular
instance is has done a very good job of garnering power, although I suspect
it lucked into it more than anything else.  There is no obvious reason for
the ITU to have been given the power it was given.  Ditto for WIPO and INTA.  
>
>	Is the ITU looking for a role?  Of course it is.  That's not an evil desire.

Nothing evil about it.  Lots of parties would like to be in such a
position.  But the fact that the ITU has that role when others don't is, in
my opinion, a major obstacle to gaining consensus in this area.  It is not
enough to point out that their power is limited; what is necessary is a
justification for their position that makes sense to a sufficiently large
percentage of interested parties.  I doubt that such a justification exists.  
>
>	Is the ITU making a power play?  Of course it isn't.  The MoU doesn't give
>it the basis for such a play.

The MoU gives it a seat on the POC.
>
>>that will be hard to stop. On the other hand, WIPO and INTA's roles seem
>>more immediately insidious.   More top level domains will multiply and not
>
>	WIPO administers a process.  They do not set the policy for resolving
>disputes.  

Dave, you probably should take a look at WIPO's web page, in particular the
"Open Letter" to the Internet community that discusses WIPO's role in these
issues.  If you read it carefully, you will see that WIPO is claiming to be
preparing a set of *substantive* rules for the resolution of disputes, in
addition to procedural ones.  This is without any basis in the written
language of the gTLD-MoU.  Besides, any trial lawyer will tell you that
procedural rules are every bit as important as substantive ones in
determining the outcome of a case.  Why was a single organization granted
such a huge amount of responsibility (and power), apparently without
significant oversight?  The power ostensibly granted to WIPO dwarfs that
ostensibly granted to the ITU.  

By the way, why on earth would the POC want WIPO to try to invent an
entirely new dispute resolution mechanism, full of unending complexities,
at the same time that POC deals with the short term need to make major
changes in the DNS administration?  Rules of civil procedure, including
alternative dispute mechanisms such as arbitration and mediation, have
developed over decades or centuries.  This is also true of the substantive
law of trademarks and other intellectual property.  Why not use the laws,
rules and procedures that exist, modifying them through the common law, as
the law has always done, rather than attempt to rebuild *everything* from
scratch on the fly?  A modest prediction for you: even if the ACPs survive
the DNS debates and the POC or the equivalent tries to implement them,
there is a flat out zero possibility that they will actually work in
practice.  

>	It is appealing to wish-away the importance and impact of trademark
>concerns but that won't help the real and pressing problems involving them.

Why, given that trademark law has developed over centuries, should the POC
attempt to "solve" the real and pressing problems concerning them?  That's
what legislatures are for.  That's what courts are for.  The POC is doomed
to fail at this objective.

> Playing the FUD factor by saying how evil and dangerous one or another
>player is does not help either.  Look at performance and look at leverage.
>So far, both of these participants have played well and constructively.

I disagree.  Much of what I see in the WIPO documents on their web page, as
well as of the ACP provisions in the gTLD-MoU, is pure foolishness.
Well-intentioned probably, but pure foolishness nonetheless.

>And neither of them has particularly strong leverage.

Again, it's stronger leverage than held by groups not given an automatic
seat at the table.  
>
>	The trademark community wants no new TLDs.  

If this statement is true, it qualifies as a good example of a group of
lawyers (mostly) seeking to encourage conflicts in their area of expertise
rather than reduce or eliminate them.  No course of action would do more to
create trademark conflicts (and work for trademark attorneys) than creating
no new TLDs.

Viewing the addition of TLDs
>as part of conspiracy for additional power by the trademark community flies
>in the face of the facts.

This is still not an endorsement of the contribution of the WIPO and INTA
on the IAHC.  It seems that, had they had their way, they would have done a
serious disservice to the Internet.  
>
>	Besides that, the claim that new TLDs will make trademark policing more
>difficult is true only if an NSI-like policy is in place and access to
>information is difficult.

Yes.  To a large extent it can said that the larger the number of TLDs, the
fewer the number of trademark disputes (and the less work there is for
trademark attorneys).  
>
>>What happens then if we simply say that DNS is something to be worked out
>>by each country according to the laws of that country and quit pretending

Not DNS, but *trademark law.*  Let trademark law alone, to be determined by
individual countries as it always has, and get a rough consensus of the
Internet community on how to operate DNS.  It should be a goal of the DNS
administration to minimize trademark disputes, but not necessarily the most
important one.  Actually resolving trademark disputes when they occur,
should not, in my opinion, be a goal of the system at all.  
>
>	What happens if we say that the DNS is something to be worked out by the
>community, according to the desires of the user and provider community, and
>quit pretending that everything must fit into old boundaries all the time?
>
>	(I must note an interest aspect to the timing of this proposal.  It is
>late.  It is very late.  

It is late.  But it is normal for the debate to really gather momentum only
when the deadline is near.  There is time to gain a consensus, but it will
require concessions on all sides.

Why is that?  Could it possibly be that those
>opposing the MoU have been cycling through one argument after another and
>keep failing to prevent it, so now they cycle to the next choice?  No, I'm
>sure this is an entirely well-meant suggestion and couldn't possibly be one
>more, in a long line, of such destructive efforts.)

Personally, I'd like to support the gTLD-MOU, but as it presently stands I
believe there are serious flaws in it that could be corrected without great
difficulty (basically, get rid of the ACP provisions and don't give
organizations permanent seats on the POC, especially groups like the ITU,
WIPO and INTA without an obvious basis for them).  As such I don't think
that it makes sense to support it at present.  The debate is not over yet.
>
>>Perhaps we should not try to solve the problems of global Internet
>>governance in the short run. Perhaps we should localize them until there

There is no other choice but to solve at least some of the problems of
global Internet governance, since the status quo is not likely to be
acceptable to the Internet community after March, 1998.  However, what we
shouldn't try to solve are the problems or trademark law or international
dispute resolution.  There are plenty of people who devote their energies
to these areas.  The Internet community has a full enough plate already.
>


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Robert L. Shearing                voice: +1-415-482-2840 	
President/CEO                       fax: +1-415-482-2844
PRIORI NETWORKS, INC.              http://www.priori.net

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