Carthage Thursday
I am very grateful for the blogging work going on at Carthage. Thomas Roessler is there, as are others. Looks as if the Board may back down in some way on the stld issue, under pressure from several directions. It won't be good if they adopt the current RFP, which requires applicants to agree in advance to ICANN's overreaching, overly-detailed contractual regime.
I'm in favor of a regular, lightweight process based on minimum technical and financial standards — and incorporating a very slim contract. I have a draft contract along these lines that I'd be happy to share with anyone who is interested.
Carthage — what is policy?
So the GNSO council today passed a resolution expressing regret at the Board's possible failure to consult with them regarding policy — in particular, chastising the Board for ignoring the council's advice to roll out sTLDs.
While I'm all for new TLDs and very concerned by the Board's failure to act on them, the council's approach to life seems dangerously wrongheaded. Members of the council argued that a decision about new TLDs is “policy” and that the GNSO is the “policy council” that must be consulted. But the contracts that registries have signed refer to the GNSO as the source of consensus policies. If the council is right about its role, then the registrars fighting against WLS in court could win through the GNSO!
More broadly, the GNSO resolution creates a bad precedent. I would ordinarily be applauding any “bottom up” attempts, but here the GNSO is misusing the idea of “bottom up” by making themselves the gateway to everything ICANN does. If this attempt works, it will create an excuse for the ICANN Board to eliminate the entire process of consensus policy development. When we're inside the non-consensus policy “policy” box, there is nothing in the ICANN contracts that says that “if there is a policy decision, the GNSO council must be consulted”.
Someone, someday, will claim that new registry services are “policy” and that the GNSO has to approve them.
Item for today: what is going on in Carthage?
ICANN staff is working away on the Issues Report called for by President Twomey's request to Bruce Tonkin. No action is being taken on new TLDs, as far as anyone can tell. RegistryPro wants permission to register names at the second level (a sensible request, and one they shouldn't even have to make). It looks like the Pro request will go through. And info wants to implement RGP — which will require changes to several appendices.
Meanwhile, where is WLS? And is VeriSign about to reintroduce SiteFinder?
It is frustrating to have these meetings scheduled in places and at times when, in order to attend, everyone has to drop their daily activities and hang around for almost a week. I have personally enjoyed very much going to these meetings, but now that I can't go I wish they were online instead of in-person.
NPR broadcast flag story
Fritz Attaway, Mike Godwin, and Emery Simon, here. The FCC is probably going to come out with a rule during the coming week. Litigation will follow.
CDA immunity and spam
There are new federal and California decisions questioning Section 230's grant of immunity to ISPs. A Seventh Circuit decision says Section 230 should be read narrowly — because its effect is to induce ISPs not to do anything to filter wrongful content. And the California court said that the immunity created by caselaw following Zeran is similarly questionable.
I have a feeling that we'll see more of this questioning of Zeran — not a good trend. ISPs have every reason to take down material that sullies their brand name, but cannot be held to a duty to monitor or screen.
Here's the text of the modified Burns/Wyden spam bill that the Senate passed unanimously on Thursday. Will spammers cooperate with a do-not-spam list? Is there something about the anonymity of email that fosters and supports spamming? Should we create communities that agree to a RBL-like death penalty for spammers? And if so, how would that penalty be enforced?
Topic for today: free trade agreements and copyright
The Free Trade Area of the Americas (FTAA) is the formal name given to an expansion of the North American Free Trade Agreement (NAFTA) to every country in Central America, South America and the Caribbean, except Cuba. Negotiations began after the completion of NAFTA in 1994 and are to be completed by the end of 2004, to be implemented in 2005.
Article 21 of the draft FTAA agreement incorporates prohibitions consistent with Title I of the Digital Millennium Copyright Act (DMCA) which implements in U.S. law the circumvention provisions of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. However, the exceptions to the circumvention prohibitions that are found in 17 U.S.C. Sections 1201(c)-(k) are not included in the Draft. Additionally, Article 8 of the draft requires each agreeing party to “grant the authors of literary and artistic works the exclusive right to authorize any communication of their works to the public by wire or wireless means, including the making available to the public of their works, such that members of the public may access them from a place and at a time individually chosen by them” — which seems to be a broadcast flag/analog hole theme. See Supplemental Comments of the American Library Association et al. on the Second Draft Consolidated Texts of the Free Trade Area of the Americas Agreement (arguing that the entire copyright chapter of the draft agreement should be eliminated because the agreement “would serve to unduly extend intellectual property rights beyond what is available under the laws of the United States”).
In an October 20, 2003 white paper, the civil liberties organization IP Justice noted that expanded criminal penalties in the treaty will send file sharers to jail throughout the Western Hemisphere and the treaty's DMCA-like provisions (without the exceptions) will limit consumers' fair use rights. The white paper concluded that “unless the draft intellectual property chapter is substantially reformed or deleted in its entirety, the treaty will grant even greater control to major intellectual property holders to chill freedom of expression, prevent competition, restrict consumer rights, and stifle innovation.” The US has already agreed to bilateral Free Trade Agreements (FTAs) with Chile and Singapore that include similar provisions — and the MPAA has had a great deal of influence on these agreements. Dugie Standeford, Trade Pacts Could Broaden IP Law and Harm Poorer Economies, WASHINGTON INTERNET DAILY, April 15, 2003.
Michael Geist has written a good storyabout this from the Canadian perspective. His quote from the Canadian Supreme Court is particularly helpful:
Noting the importance of maintaining a fair copyright balance, the Court stated that “the proper balance … lies not only in recognizing the creator's rights but in giving due weight to their limited nature . . . excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”
No new TLDs for a while — and SiteFinder
Two pointers for today: First, Beyond the Verisign vs. ICANN Battle, in businessweek.com, which says that the net's archaic infrastructure needs to grow up. The article makes the “religion” points (without using the name) that interest me — that governance is “paralyzed by an old guard.” That feels like the right description, particularly of the SESAC committee. But I disagree with the article's assertion that SiteFinde broke anything significant. If it did, then ICANN should come out with…an emergency consensus policy saying so.
Second pointer: no new TLDs for a while. While I agree that Stuart Lynn's “chalice” of three new sTLDs seemed like a gift that ICANN didn't need, it's difficult for all the people lined up to apply to believe in this process. And I will bet that we won't be seeing new TLDs for years. I think we'll see a process that outlines a procedure that discusses an approach that recommends a strategy …. Years.
WLS goes to trial
Bret Fausett reports that after extensive oral argument Judge Webster has decided to ask ICANN whether it wants to put off implementing WLS until after a December trial date. If ICANN says it's unwilling to do that, then he'll issue an injunction opinion in the next week or so.
It looks from Bret's report as if it's a toss-up what will happen here. I'm disturbed by the judge's questioning about the consensus policy clauses — ICANN should have made clear to him (and tried to in its papers) that registries are free to roll out services unless there exists a consensus policy to the contrary, that ICANN was only asking registrars (and the GNSO) for advice on Appendix G, and that the registrar opposition to WLS (which itself isn't uniform) doesn't represent a consensus policy. In my mind, he must be leaning towards some kind of injunctive relief, which would be a set-back for ICANN generally.
Also, I'm concerned that ICANN views its negotiations with VeriSign as having a long way to go. Didn't ICANN make a suggestion about Condition C? And didn't V ask that that be reconsidered? So couldn't V withdraw its request for reconsideration — and wouldn't ICANN then be obligated to wind up the negotiations? If ICANN asks for more (in a move to placate the registrars) that will be a clearly anti-competitive action on ICANN's part. ICANN has no authority to negotiate the details of registry services — unless they break the registry-registrar protocol in some way. Which this doesn't.
All in all, a bleak (if brief) report. Looking forward to more details.
The Broadcast Flag
More steady off-the-record hints that an FCC regulation is on the way. My article, “The Biology of the Broadcast Flag,” will be coming out in Hastings COMM/ENT in a few (weeks?) (months?). When you read it, you'll understand why the FCC shouldn't act.
In a nutshell, the FCC doesn't have jurisdiction to do this, there isn't a problem now (because of bandwidth issues), this wouldn't fix the problem (because of the analog hole), and this will cause lots of other problems — including freezing innovation, putting studio gatekeepers in charge of consumer electronics and IT products, and generally contributing to a monoculture of access and law. The studios believe that the continuing existence of analog is “unnatural,” and that we need to protect evolution towards a secure, digital world. But they haven't listened to the importance of chance in evolution — in fact, they'd like to make sure that they can keep new creatures from appearing (unauthorized machines) and keep their own creature (their business model) from becoming extinct.
Sitefinder and WLS
On Monday, Oct. 20 at 1:30, Judge John Walter of the Central District of California will hear the preliminary injunction motion made by the DJC in the WLS matter — Dotster v. ICANN. ICANN's arguments look strong, and I am hopeful that the injunction request will be denied. I look forward to whatever information comes out about the hearing. It seems to me that not allowing WLS to go forward will cause harm to a group of people that is larger than ICANN — the registrars who want to adopt WLS, the registries who are waiting to roll out WLS-like services, and the registries and registrars who want to be able to innovate without asking permission from their competitors.
I'm also hopeful that VeriSign's sale of NSI will help smooth the way to a quick resolution of the WLS dispute. If the driver behind the DJC's concern about WLS was that NSI (and thus VeriSign) would be advantaged, surely that concern has been diluted.
Finally, it seems to me that ICANN should both want to win this suit and avoid future lawsuits. If ICANN stops pretending to have the power to stop Sitefinder (in the absence of an emergency board policy to the contrary), that would be a good outcome. ICANN should stay true to its limited powers and contractual roots. If ICANN truly believes that Sitefinder is destabilizing, then an emergency Board policy should be next.