January 29, 2008 | Posted By : David Snead at 9:54 PM PERMALINK | Blog Comments (3)

Where's the Hosting Association? Thoughts from domainfest 2008

Last Wednesday morning’s domainfest 2008 keynote presentation was from the Internet Commerce Association (ICA). The ICA represents the interests of domain name owners in congress. My initial “initiation” into the hosting industry was at a 1999 gathering of hosts to discuss legal and regulatory issues that were affecting hosts at the time. Amazingly, some of those issues remain.

What does the industry gain from participating in the political process? The short answer is a voice in Congress. Make no mistake, companies like Amazon, Yahoo, Google and Microsoft are making sure that their voice is heard, and that their concerns about legislation that may affect their hosting businesses are presented to decision makers. The interests of those companies are likely to be significantly different than yours.

I’ve beat the association drum for a long time. Most hosts I’ve talked to about this issue have argued that nothing has affected their business so far. To address this argument, I’ve set out four items in a “wish list.”

DMCA reform: entities and individuals who use the DMCA process should be required to state, under the penalty of perjury, that they have a good faith belief that the material identified in the complaint is infringing. Currently, many copyright owners shoot first and ask questions later. This has led to a situation where legitimate websites are shut down, only to demonstrate to the copyright owner that they have a license to use copyrighted information.

Clarification of data retention requirements: web hosts should not be required to preserve evidence, or potential evidence, in third party litigation without compensation. Recent revisions to the Federal Rules of Civil Procedure create incentives for third parties to demand that web hosts and other Internet infrastructure providers preserve data without compensating them. The cost of preserving backup tapes, without recycling them, is, in some cases, enough to significantly squeeze a company’s profit margins.

Privacy / Data Integrity: any legislation or rulemaking in this area should recognize the rights of web hosts who collect data to use that data in their business, and monetize it, with the consent of their customers. As the web develops, creative businesses have found ways to enhance the user experience. Any privacy legislation should not unduly limit these business ideas.

ICANN: changes to domain name registration policies don’t unduly discriminate against domain name resellers. Many hosts use cheap domain names to drive business. ICANN regulations should facilitate internet commerce, not establish a registrar cartel.

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January 22, 2008 | Posted By : David Snead at 10:13 PM PERMALINK | Blog Comments (0)

Are domain names real property? Thoughts from Domainfest 2008

The second day of domainfest 2008 concluded with a two hour live auction of domain names. At the start of today’s auction “sex.la” had the highest minimum required bid (surprise surprise). This auction in particular, and domainfest in general, got me to thinking about whether domain names should be considered to be real property, similar to real estate, or intellectual property, similar to trademarks and copyrights. Based on the chats I’ve had in the exhibit hall, and at other conferences, it seems that domainers like the idea of giving domain names some, if not all, of the attributes of real property. On the other hand, Big IP has been firm in its assertion that domain names should be considered to be intellectual property only. While using either of these analytical frameworks would add a certain amount of legal certainty, I think that using either framework, exclusive of the other would be a missed opportunity to create law that reflects the particular place that the Internet occupies in society.

Why do I hold this opinion? Based on my experience, and that of other lawyers active in the domain space, the law applied to domain name disputes has diverged significantly from the reality of domains today. While typosquatters and cybersquatters still exist, the era of “nikke.com” has long passed. Ignoring this, Big IP still treats the domain name space as their own province based on the cybersquatting era.

To illustrate this, one needs no better than the questions posed to my legal panel this morning. The vast majority of them dealt with how to deal with requests from the general public to buy a domain name. Why is this such a pressing legal issue that no fewer than three different permutations of this question were posed to the panelists? The short answer is that the ACPA, and panel decisions under the UDRP, have given great weight to “excessive” requests for compensation for domain names, particularly when a domain name isn’t being put to “productive” use. As a result, domain name owners have had to develop elaborate ways of answering questions about the value of their domains without triggering a presumption that they are in violation of the law. This presumption, and other presumptions, like a parked domain is not being put to productive use, illustrate for me the application of a tortured interpretation of intellectual property law to domain names.

I can’t think of another area of the law where similar presumptions operate. Using the real estate analogy, do we force a sale for a “reasonable price” on a person who has purchased a parcel of land in anticipation that it might be a good place for a shopping mall?

Other than as a simple rubric for legal analysis, however, real estate doesn’t work very well for domain names. The Internet isn’t Oklahoma in the 1880s. The Internet is more of a public/private partnership in which societal concerns, and facilitation of commerce may need to be given priority over private gain and speculation limited to provide opportunities for more robust use.

As the linchpin of Internet functionality, the law needs to recognize that domain names cannot be subject to one legal theory exclusive of others. Rather creative judges and legislators must recognize the importance of domain names both as a cradle of Internet innovation, and a natural extension of current trademarks.

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