Re: comments on Jim's and Jeff's addenda to the gTLD MOU

["andi payn" <payn@null.net>]

>>> is Jim and/or Jeff, >> is Amadeu's comments, > is Jeff again
(Sorry if this is a bit confusing; Amadeu's software doesn't seem to be
adding all the brackets it should be.)

>>>   1       the financial barriers to CORE membership should be low
>>
>> This not a matter for gTLD-MoU, even not for CORE-MoU. The requirements
weret in
>> the application form. And they are low, Jim. But don't send 25 mails
answering
>> that point: we both would easily agree that they could be lower, and that
they
>> should be still lower.
>
>  If it is not a matter for the gTLD-MoU or CORE-MoU, than why is ti
>part of
>teh requirnment to become a registrar and in the MoU document?

Jeff, it's not in the gTLD-MoU; it's in the application form, which is a
separate document which you only have to sign if you're applying to be a
registrar.

>>>   2       CORE should begin operations with a large number of
registrars,
>>>           hundreds if at all possible
 >>
>> Yeah, everyody being forced to be registrar... Come on THE VAST MAJORITY
OF
>> NON-APPLICANTS will stay home NOT because the requirementsts are dilt to
meet,
>> but
>> simplysinmply becaus they are interested in this business. Bm involved n
the iet
>> or not. Do you really believe that, if let's say Microsoft or General
Motors do
>> not become registrars is because they cna get a credit line????.

Amadeu: No, but I do believe that if more than 99% of the ISPs don't want to
become registrars, in many cases, it's because they can't or don't want to
get credit lines, or don't want to pay $10K.

>>>   3       CORE should begin operations as soon as possible
>>
>> There we agree. But your move could only lead to stop current selection
process
>> and start everything form scratch is quite inconsistent with this goal,as
far as
>> I can see.
>
>  Maybe it isn't part of the "Goals" but it should be.  Possibly
>stopping
>the process is a good idea and starting all over again.

I think that someone could easily get a test system set up and running well
within a month, and let CORE take it over and begin running it the way they
want to once they're incorporated and ready to go. Once they're happy with
it, which should be another month at most, they can start accepting
registrarions.

>>   4       CORE should be professionally managed
>>
>> This is exactly the kind of  provision which inclusion in a
>> basic,onstitutional-like doc as the gTLD-MoU is essential. I'll ask form
>> tomorrow that the Maastricht Treaty be reformed to provide that custom
officers
>> must be highly-qualified professionals speaking at least seven languages.
>
>  Your sarcasim does not strengthen your argument here a bit.  It only
>points
>to the fact that you and most members of POC/PAB have very little
>intrest in
>getting other points of view that have some relevance to the structure
>problems that are glaring to nearly everybody whom has read the
>gTLD-MoU.

I agree that CORE should be professionally managed, but I don't think that
this belongs in the gTLD-MoU. If it belongs anywhere, it's in either the
CORE-MoU or the CORE articles of incorporation, both of which were written
by iPOC and can be modified by CORE only with POC's approval, I believe.

>>>   6       if at all possible, existing shared registry software should
>>>           be used in CORE's operations
>>
>> "Existing shared registry"?? Now you sound funny. Are you against
progress? Has
>> the software industry reached that point of maturity where no improvement
is
>> needed, convenient, possible? This is eften known as the beginning of
>> obsolescence.

The main point of starting with existing software is to get things rolling
as soon as possible. Even if nothing out there is a perfect fit, it may be
easier to modify existing software than to start from scratch. Hopefully,
the software used by Nominet or another existing registry will be either
usable or close enough to use as a starting point. The second reason to
start with existing software is, of course, that it's presumably been proven
through use--that is, you already know how reliable it is.

>>   8       CORE should be strongly encouraged to use public domain
software
>>
>> Public domain db that large, powerful and reliable? Well, if they
exist.... But
>> again fitting this is a
>> second order choice, after service quality.
>
>  I agree again here.  But it is possible to use public domain software
>in many instances.  This is no exception.

Much of the software that drives the Internet is public domain, or at least
GNU- or similarly-licensed free software. One of the advantages of public
domain software is that you can freely modify it to suit your needs. Another
is that there's often a large pool of people who've been working on it
openly, publicly, and voluntarily for some time who are generally willing to
fix bugs and add features much more quickly than with commercial software
(and I say this as someone whose primary income comes from commercial
software development).

 >>   10      a gTLD name server should put put on line as quickly as
>>           possible, preferably by 15 October
>>
>> Perfect, before the selection period ends. Or still better, before you
convince
>> us to redo the whole thing. Any idea where could we locate this server?
>
>  Yea!  I would be happy to provide the server.  There is one problem
>solved.

I was going to say that if this had been done differently from the
beginning, there would be plenty of people volunteering time and equipment
to make this happen. Fortunately, there still are some.

There's no reason you can't have a server on line with test data before you
finish the selection process. As I pointed out before, this would be a good
thing. CORE, once they got organized, could spend a month or so testing and
tinkering with the system, and barring any serious problems or objections,
they could begin registering names well before the end of the year.

>>>   14      domain names are addresses
>>
>> Yes, and the millions of people who may think otherwise should be
reeducated .
>> Period. If everybody could agree that they are ONLY addresses we would
not be
>> discussing all this.

Who exactly thinks otherwise? There are people who think that domain names
are, as well as being addresses, various other things (some of which are
wildly wrong, such as the idea that domain names form a directory), but I
think everyone accepts as a minimum that they are addresses.

Even if domain names are only addresses, by the way, that doesn't
necessarily eliminate all trademark issues. If I try to use the name "514
Hope St." (or whatever the name of Damon Wayans' new show is) for a line of
action figures which happen to look like characters on the show, I don't
think I can defend myself successfully by saying "They can't trademark that
name; it's just an address." On the other hand, if I have an office building
at 514 Hope St. in another city, say downtown LA, and I have a sign saying
"514 Hope St." on my building, I could defend myself quite easily. The
important point here is that trademark violations come from confusion or
from intentional misleading (or, in the case of exceptional strong
trademarks, from dilution), not just from name identity.

>>>   15      the rights of trademark holders should be recognized, but only
>>>           in cases where there is a clear attempt by a domain name
>>>           holder to pass himself off as a trademark holder
>>
>> I'd could devise more precise legal terms ;-) I notice you are not
bothered
>> about reverse hijacking, or other ways of pirating htat occur.

With all due respect, I think you've completely misread Jim's point. Reverse
hijacking seems to be exactly what he's trying to stop here. If trademark
holders can only prevail when there is a clear attempt by a domain name
holder to pass himself off as a trademark holder, reverse hijacking becomes
impossible.

I don't agree with Jim here any more than I agree with the MoU; I think he's
gone too far to the exact opposite side. I think that trademark disputes
based on domain names should be handled using the same principles as
trademark disputes based on company names, product names, advertising
slogans, vanity phone numbers, or anything else.

Of course there is no one set of standards used by every jurisdiction in the
world, but there are some basic principles that are used in most
jurisdictions (enough for WIPO to consider them international), and they are
not the principles in use in the MoU (or, for that matter, in Jim's
counterproposal).

If the use of a trademarked name by someone other than the trademark holder
causes confusion, or is meant to mislead, or dilutes a "strong" trademark,
it's a violation. There are exceptions for prior use by the non-holder, fair
use and/or satirical intent by the non-holder, and misuse of the trademark
by the trademark holder. If anyone finds these standards objectionable in
some way, please explain to me how.

>  I do.  I think you should resign.  Or learn english better.

Jeff, as long as we can understand Amadeu (which I almost always can), his
English is good enough... Besides, if we get into that issue too far, people
are going to standard demanding bilingual English/French proceedings
(following the model of many UN-related committees and organizations).

>> I translate my mail: I'm not saying that any of your proposals is
nonsense. Most
>> are not quite the contrary. I'm just pointing out that I CAN'T BELIEVE
that the
>> thousands of people you claim are wihing to enter the system but are
prevented
>> by the current content of gTLD-MoU would be much impressed by these
amendments.
>> And that many of them would simply read ridiculous in a MoU, no matter
how sound
>> they are.
>>
>> The road may be the right one. The examples are not. Making policy is
more
>> difficult than
>> cirticizing somebody else's efforts. I encourage you to provide a better
list

OK, Amadeu, did you read my proposals (the third set)? I think that what
we've come up so far with would be enough to alleviate the fears of hundreds
of people who were previously hesitant or unwilling to sign, and remember
that at this stage we're only a few hours and three proposals into the first
phase...

Also, keep in mind that what we're proposing are addenda that we'd tack onto
the end of the MoU and sign. If you want me to instead write a proposed
replacement gTLD-MoU, I could do that just as easily, but there doesn't seem
much point to that. The point to compiling a list of addenda is to create a
standardized amended MoU that nearly all of us with objections could sign,
allowing us to join PAB and begin having a direct voice in the system.