ICANN to the Rescue

By Larry Seltzer  |  Posted 2006-11-20 Print this article Print

If ICANN has done anything well its protecting the rights of intellectual property owners. A mandatory arbitration process was created through which trademark holders can reclaim domain names created by others that infringe the trademark. It costs a couple thousand dollars to do this, if you have a decent lawyer and the infringing party doesnt dispute the process. Infringing domains are extremely prevalent and its common for the owner not to bother responding to the arbitration process. Two grand is too much, but at least trademark owners have recourse. If your domain is simply stolen, ICANN doesnt care, and youre on your own.
One of the panel members at the Internet Society discussion was a trademark attorney who argued against any changes that would make it harder to find the owners of domains in order to bring them to the arbitration process.
The specific proposal he was concerned about is called the OPOC, or Operational Point of Contact. Heres the initial description of the proposal (PDF). Currently Whois has to contain three contacts, the Administrative, Billing and Technical contacts. The distinctions never really amounted to what the designers intended, and most people dont know what it really means. And in order to escape abuse, many people put false information in these fields, which is against the rules and leaves the owner at risk of not receiving important communications. The discussion at the Internet Society indicated that OPOC now no longer includes the address or phone number as public information, just the country and state of the registrant. Put briefly, OPOC replaces them with one contact point and theres an understanding that it might be the hosting service or someone else who can deal with domain issues and can get in touch with the actual owner if necessary. The proposal also makes unrelated suggestions about record keeping and processes for transfers. This would be a good thing, but it still seems to me to be inferior to the arrangements you can make with various registrars to protect your privacy. There are two approaches taken: Theres the GoDaddy approach, in which a proxy service actually becomes the registrant of the domain. E-mail sent to the address does not go to you unless you arrange for it, and theyll also do spam filtering on it. Network Solutions private registration is different. They hide the address and phone numbers and set up a forwarding e-mail account to you where the name in the address changes every 10 days so that spammers cant do much damage with it. But you, and not a proxy service, are the registrant. A shady company is registering domains after others test the names through Whois. Click here to read more. Theres some dispute over whether some or all of these techniques violate ICANN rules, especially the proxy approach, but they seem too entrenched to do anything about. But private registration services were banned on the .us top-level domain. The private registration services will pass on contact information pursuant to a valid subpoena or, I would suppose, the ICANN arbitration process, so it gets in the way but isnt too much of a problem. OPOC doesnt solve other problems, including the ones about which I have been very concerned, such as domain theft and mass-scale name speculation. One reason is the transfer policy that says that transfers will go through unless the owner stops it. Another reason Im leery of OPOC is that it was designed by registrars. There are lots of reputable registrars, but ICANN has created a situation where anyone can become a registrar and often for obviously shady purposes. In fact, Bruce McDonald, the trademark attorney in the panel group I mentioned, said in it:
    Who are the people who are registering these fictitious Web sites? Weve conducted innumerable private investigations. In nine out of 10 cases, by the use of various investigative techniques, weve observed that the party in interest is almost always the domain name registrar.
Yes, thats right. The registrars themselves are the ones doing domain name speculation. Of course we knew about this from the typo-squatting lawsuit against Dotster by Neiman Marcus and Bergdorf Goodman. A couple years ago in an interview ICANN dismissed to me the idea of a rogue registrar, saying no registrar would risk its accreditation. Turns out a registrar wouldnt have to, because registrars dont ever get in trouble for violating rules. As Danny Younger, the moderator of the Internet Society panel, once said in comments to the Department of Commerce,
    ...rather than striving to become an organization committed to private, bottom-up coordination operating for the benefit of the Internet community as a whole, ICANN has chosen instead to focus its attention exclusively upon that select stakeholder community that feeds its coffers—it has become primarily a registry-registrar Guild Manager.
Hes right, and thats why things wont get better. In fact, if it serves the interests of ICANN and their masters, expect things to get worse. Security Center Editor Larry Seltzer has worked in and written about the computer industry since 1983. He can be reached at larryseltzer@ziffdavis.com. Check out eWEEK.coms Security Center for the latest security news, reviews and analysis. And for insights on security coverage around the Web, take a look at Ryan Naraines eWEEK Security Watch blog.

Larry Seltzer has been writing software for and English about computers ever since—,much to his own amazement—,he graduated from the University of Pennsylvania in 1983.

He was one of the authors of NPL and NPL-R, fourth-generation languages for microcomputers by the now-defunct DeskTop Software Corporation. (Larry is sad to find absolutely no hits on any of these +products on Google.) His work at Desktop Software included programming the UCSD p-System, a virtual machine-based operating system with portable binaries that pre-dated Java by more than 10 years.

For several years, he wrote corporate software for Mathematica Policy Research (they're still in business!) and Chase Econometrics (not so lucky) before being forcibly thrown into the consulting market. He bummed around the Philadelphia consulting and contract-programming scenes for a year or two before taking a job at NSTL (National Software Testing Labs) developing product tests and managing contract testing for the computer industry, governments and publication.

In 1991 Larry moved to Massachusetts to become Technical Director of PC Week Labs (now eWeek Labs). He moved within Ziff Davis to New York in 1994 to run testing at Windows Sources. In 1995, he became Technical Director for Internet product testing at PC Magazine and stayed there till 1998.

Since then, he has been writing for numerous other publications, including Fortune Small Business, Windows 2000 Magazine (now Windows and .NET Magazine), ZDNet and Sam Whitmore's Media Survey.

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