SPEAKERS CONTENTS INSERTS
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72–143 DTP
2001
ICANN, NEW gTLDS, AND THE PROTECTION OF INTELLECTUAL PROPERTY
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
MARCH 22, 2001
Serial No. 8
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250
Mail: Stop SSOP, Washington, DC 20402–0001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN N. HOSTETTLER, Indiana
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MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
TODD R. SCHULTZ, Chief of Staff
PHILIP G. KIKO, General Counsel
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Subcommittee on Courts, the Internet, and Intellectual Property
HOWARD COBLE, North Carolina, Chairman
HENRY J. HYDE, Illinois
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia, Vice Chair
WILLIAM L. JENKINS, Tennessee
ASA HURCHINSON, Arkansas
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN N. HOSTETTLER, Indiana
RIC KELLER, Florida
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
RICK BOUCHER, Virginia
ZOE LOFGREN, California
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
TAMMY BALDWIN, Wisconsin
[VACANCY]
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BLAINE MERRITT, Chief Counsel
VINCE GARLOCK, Counsel
DEBRA ROSE, Counsel
CHRIS J. KATOPIS, Counsel
ALEC FRENCH, Minority Counsel
C O N T E N T S
March 22, 2001
OPENING STATEMENT
The Honorable Howard Coble, a Representative in Congress From the State of North Carolina, and Chairman, Subcommittee on Courts and Intellectual Property
WITNESSES
Mr. Louis Touton, Vice President, Internet Corporation for Assigned Names and Numbers
Ms. Elana Broitman, Director, Policy and Public Affairs, Register.com
Mr. Jeffrey J. Neuman, Director, Law and Policy, Neustar, Inc.
Mr. Steven J. Metalitz, Vice President and General Counsel, International Intellectual Property Alliance
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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The Honorable John Conyers, Jr., a Representative in Congress, From the State of Michigan: Prepared Statement
Mr. Louis Touton, Vice President, Internet Corporation for Assigned Names and Numbers: Prepared Statement
Ms. Elana Broitman, Director, Policy and Public Affairs, Register.com: Prepared Statement
Mr. Jeffrey J. Neuman, Director, Law and Policy, Neustar, Inc.: Prepared Statement
Mr. Steven J. Metalitz, Vice President and General Counsel, International Intellectual Property Alliance: Prepared Statement
APPENDIX
Post-Hearing Questions
Material submitted for the record
ICANN, NEW gTLDS, AND THE PROTECTION OF INTELLECTUAL PROPERTY
Thursday, March 22, 2001
House of Representatives,
Subcommittee on Courts, Intellectual
Property and Information Technology,
Committee on the Judiciary,
Washington, DC.
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The Subcommittee met, pursuant to call, at 10:05 a.m., in Room 2141, Rayburn House Office Building, Hon. Howard Coble [Chairman of the Subcommittee] presiding.
Mr. COBLE. Good morning, ladies and gentlemen. The Subcommittee will come to order, and I want to first of all dispense with some housekeeping duties.
We are pleased to welcome newly assigned Members to our Committee: Ms. Waters, Mr. Meehan, Mr. Rothman, and Mr. Baldwin from the Democrat side; Mr. Hyde, our former chairman of the Full Committee, Mr. Graham, Mr. Bachus, Mr. Scarborough, Mr. Hostettler, and Mr. Keller from the Republican side.
Our membership has grown since the last session. I look forward to working with these Members who are holdovers from last session, and we are particularly pleased to welcome the newcomers. I believe they will find a good bipartisan working relationship with the Ranking Member from California, Mr. Berman, and with me, and we are glad to have them aboard.
Good to have the gentleman from Michigan, the Ranking Member of the Full Committee, here, as well. Furthermore, we have a request today from two non-Members of the Subcommittee, Representative Nadler and Representative Schiff, to sit in on today's session. Without objection, I will be pleased to welcome them to the podium.
I will give my opening statement. I will recognize the distinguished gentleman from California, and then if Mr. Conyers has an opening statement, I will recognize him. The other Members, I would ask for their opening statements to be admitted into the record, in the interest of time.
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Now, there is a Judiciary Committee bill on the floor, and I have been asked by the Chairman of the Full Committee to declare a recess when that bill is called up for consideration, in the event that any Members want to go to the floor to be heard on that bill. That will be a very brief recess. I am furthermore advised that there will probably be votes on or about 11 to 11:30 and then again from 1 to 1:30. So, having said all that, I hope we will be able to negotiate the mazes that we confront as we go along on today's hearing.
I look forward to chairing this panel for another legislative session, and we will proceed on today's hearing.
Today, we are here to focus our attention on the rapidly changing world of the Internet, and specifically the challenges posed to the intellectual property community by the addition of new generic or global top level domains, gTLDs. As we all know, the expansion of the Internet creates many exciting opportunities for businesses and entrepreneurs. At the same time, however, we have witnessed that the Internet also presents many challenges to the enforcement of intellectual property rights.
During the last two Congresses, this Subcommittee conducted hearings on Internet domain names to assess their impact on intellectual property rights, particularly as those rights are protected under the Lanham Act. As we noted then, the assignment of domain names is done through a privately administered system which produces registrations that result in a global presence accessible from anywhere in the world. In contrast, intellectual property rights are publicly administered on a territorial basis and are exercisable only within that territory. That is the crux of the problem before us.
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This hearing will primarily focus on the intellectual property challenges created by the Internet Corporation for Assigned Names and Numbers—decision to add seven more gTLDs by which to register Internet domain names. Because the Internet represents a fertile ground for both trademark and copyright violations, the domain names system is an area of special importance to this Subcommittee. It is imperative to ensure that this initial addition of domains is done correctly, so as to provide an appropriate precedent for subsequent additions in the future.
Although the growth in domain names is a positive step for the Internet, it raises significant questions for the intellectual property community. Will the new domains adequately protect American intellectual property interests? Would intellectual property owners have access to accurate contact information in an accessible ''Whois'' database in order to protect their copyright and trademark rights? Finally, is the current dispute resolution policy administered by ICANN adequately protecting intellectual property rights?
Another issue which may be addressed today is the danger posed to the Internet and intellectual property communities by the announcement of at least two companies which plan to establish an alternative Internet, that will enable them to register domains outside of the auspices of the ICANN system. I am very concerned about this latest development, and look forward to hearing the testimony regarding that from our witnesses today.
Some would argue that these intellectual property issues should not ascend to the top of the agenda for the domain name industry. I do not agree. The issues we will discuss today are indicative of the challenges facing all of us as the governance of the Internet is shifted from the government to the private sector. As the Internet grows and transforms itself into the dominant commercial medium of the 21st century, this Subcommittee must ensure that intellectual property concerns are adequately protected.
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I am now pleased to recognize the distinguished gentleman from California, the Ranking Member, Mr. Berman, for his opening statement.
Mr. BERMAN. Well, thank you very much, Mr. Chairman. It is good to serve with you again, and I join you in welcoming the new Members of the Subcommittee. I ask unanimous consent to include my whole statement, and assume it will be granted.
The hearing is particularly timely, since ICANN met earlier this month and made several important decisions about the roll-out of the new top level domains. I am concerned about the effect of the decisions on intellectual property protection, as the Chairman mentioned, and I look forward to hearing from the witnesses.
The Subcommittee has actively exercised its jurisdiction over these domain names and ICANN issues over the course of several Congresses. We have had several hearings on domain name issues during the 105th and 106th Congresses, reported out the Anti-Cybersquatting Consumer Protection Act in 1999, as a result of which we got into a big mess on work-for-hire issues, but we took care of those last year.
Through these hearings, we have learned that the idea of creating new top level domains generates significant controversy. Some embrace the idea with unbridled enthusiasm. Others express great hesitation. I don't envy the position of ICANN that it finds itself in as a result of this controversy. You have a difficult balancing act in crafting a responsible plan for the roll-out of the new TLDs.
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Owners of trademarks and copyrights have been at the forefront of those concerned. IP owners are concerned that new TLDs would make it much harder to combat both copyright and trademark infringement on the Internet. Trademark holders have argued that it would increase the opportunities for cybersquatting, forcing them to snap up domain names in every new top-level domain. These kinds of actions would leave the domain name space as crowded and undifferentiated as it is now.
Intellectual property holders have been very flexible in their position, and now accept the inevitability of the new top level domains. Instead, they are advocating for reasonable accommodations to ensure that the creation of new top level domains does not devalue their intellectual property.
I commend ICANN's decision to require new TLD applicants to address intellectual property concerns in their applications. This ensured that IP would at least be part of the dialogue. However, new top level domains should be approved by ICANN, and ultimately by the Department of Commerce, in my opinion, they include reasonable accommodations for the protection of intellectual property.
I would like to hear from Mr. Touton—is it Touton?
Mr. TOUTON. Touton.
Mr. BERMAN. Touton, Mr. Touton, why ICANN cannot determine a baseline of intellectual property protection that would be required for the new top level domain names. I would also like to learn from ICANN and the two in-negotiation registries testifying here today, how the new registries plan to protect intellectual property.
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I hope to hear about the new registries and how they intend to reduce the risk of cybersquatting presented by the creation of new TLDs. I would like to hear how these new registries intend to ensure the accuracy and availability of the ''Whois'' database—the list of who owns which web site and where he or she can be contacted.
And I am especially interested in hearing about the differences in approach that these two registries have taken to protecting intellectual property, and how the intellectual property constituency of ICANN feels about the intellectual property policies of the two new registries represented here and the five other applicants not here.
And other than those wishes, I will hold back the rest of them. And I want to thank the Chairman again for calling the hearing, and I look forward to hearing the testimony of the witnesses.
Mr. COBLE. I thank the gentleman for his comments.
Does the gentleman from Michigan wish to be recognized?
Mr. CONYERS. Just briefly. Thank you, Mr. Chairman, and good morning.
The one thing I would like to add to Mr. Berman's comments is that free speech advocates are worried that trademark holders will file suit over any domain name that resembles their mark, even if the person who is registered had a legitimate reason to do so—sharing the same name, for example. Their concern is that too much trademark protection will limit free speech and encourage the creation of alternative Internets with no mark protection at all. But I am convinced we can't let the threat of competing Internets deter us from protecting intellectual property rights on the one Internet we all use today.
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Priority of property owners is that companies who register the new domain names should make their lists of web site owners publicly available. These lists, commonly known as ''Whois'' databases, make it easy for rights holders to track down those who operate web sites with infringing domain names or infringing content. If the ''Whois'' databases are closed or have inaccurate information, infringement on the Internet can continue unabated, so we have to figure out how we can keep them open and up-to-date.
Unfortunately, the policymaking body that can ensure IP rights, ICANN, is a multinational organization that appears to be accountable to no one. So I hope ICANN will look out for the rights of U.S. intellectual property owners as it continues to set Internet policy.
I thank the Chairman.
[The prepared statement of Mr. Conyers follows:]
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
I am pleased the Subcommittee is looking into the issues that have been raised by the seven new top-level domains. The Commerce Committee held a hearing on this issue in early February, and it is important for the Judiciary Committee to assert its jurisdiction over matters like this that raise intellectual property concerns.
One such concern is that the new domains will result in more cybersquatting, where people register as websites the names of famous people and companies hoping to sell them for a profit. Fortunately, there are remedies against this: the recent Anticybersquatting Consumer Protection Act created a private right of action against cybersquatters, and there are organizations that resolve disputes between people who claim rights over the same domain names. I am happy to say that the Internet address Conyers- dot-com appears to be a community interest site for people who live in Conyers, Georgia, so I don't have to file my own cybersquatting lawsuit.
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Free speech advocates, though, are worried that trademark holders will file suit over any domain name that resembles their mark, even if the person who registered it had a legitimate reason to do so—sharing the same name, for example. Their concern is that''too much'' trademark protection will limit free speech and encourage the creation of alternative ''Internets'' with no mark protection at all; but I am convinced we cannot let the threat of competing Internets deter us from protecting intellectual property rights on the one Internet we all use today.
Another priority of property owners is that the companies who register the new domain names should make their lists of website owners publicly available. These lists—commonly known as ''Whois'' databases—make it easy for rights holders to track down those who operate websites with infringing domain names or infringing content. If the ''Whois'' databases are closed or have inaccurate information, infringement on the Internet can continue unabated, so we must ensure they remain open and up-to-date.
Unfortunately, the policymaking body that can ensure IP rights, ICANN, is a multi-national organization that appears to be accountable to no one. I hope ICANN will look out for the rights of U.S. intellectual property owners as it continues to set Internet policy.
Mr. COBLE. I thank the gentleman. I am pleased to welcome the gentlemen from Massachusetts and Indiana and the gentlelady from California who have joined us since we started. And prior to recognizing the panel, I want to also welcome Mr. Goodlatte, the gentleman from Virginia, as the new Vice Chairman of this very important Subcommittee.
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Our first witness is Mr. Louis Touton, who is vice president, secretary, and general counsel of the Internet Corporation for Assigned Names and Numbers, that is, ICANN. Mr. Touton served as law clerk to the Honorable Jerome Farris of the United States Court of Appeals for the Ninth Circuit. Upon completion of his judicial clerkship, he joined the law firm of Jones, Day, Reavis & Progue, where he has practiced for 18 years. He holds a Bachelor of Science degree in electrical engineering and computer science from the Massachusetts Institute of Technology, and received his J.D. degree from the Columbia School of Law.
Our next witness is Elana Broitman, who currently holds the position of director of policy and public affairs for Register.com. Ms. Broitman acts as that company's primary liaison with ICANN; develops consensus within the registrar constituency and among the various ICANN constituencies for favorable policies; and drives initiatives for new TLDs. Ms. Broitman is responsible for ensuring Register.com's adherence to ICANN regulations by actively working with internal technology, marketing, finance, and customer management, customer service management. Ms. Broitman holds a B.A. in international policy and economics from Trinity University, and received her J.D. with honors from the University of Texas School of Law in Austin.
Our next witness is Mr. Jeffrey Neuman, who is the director of law and policy for NeuStar, Inc. His area of expertise includes the protection of intellectual property assets, trademark infringement, and copyright infringement. Prior to joining NeuStar, he spent several years with the law firm of Greenberg Trautig, where his expertise was used in the formation of alternative domain name dispute resolution mechanisms before the World Intellectual Property Organization. He is currently advising NeuLevel on how to handle intellectual property protection concerns, and has recently returned from the ICANN meeting in Melbourne, Australia, where he made a detailed presentation to the IPC on this subject.
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Our final witness is Mr. Steven J. Metalitz, who is a partner in the Washington, D.C. law firm of Smith & Metalitz, specializing in intellectual property, privacy, and information law. He provides legal counseling and policy advocacy, primarily for clients in the publishing, recording, motion picture, software, and database industries. Since November of 2000, Mr. Metalitz—am I pronouncing your surname correctly, sir?
Mr. METALITZ. Metalitz.
Mr. COBLE. Metalitz. Has served as president of the Intellectual Property Constituency, IPC, of the Domain Name Supporting Organization of ICANN. In this role he is a principal global spokesman for the interests of copyright and trademark owners in the management of the domain name system. Mr. Metalitz is a member of the District of Columbia and the South Carolina bars, and currently teaches copyright law at the George Washington University here in Washington.
We have written statements from our witnesses on this panel, and I ask unanimous consent that these statements be submitted into the record in their entirety.
Lady and gentlemen, we are very pleased to have you all with us today. I would ask this of you, as you were previously advised: If you could, confine your oral testimony within the 5-minute time frame. Now, you will not be buggy-whipped if you go beyond that, but you will be admonished. When you see the red light appear on your panel, that will be your warning that the buggy whip is nearby. It is real good to have you, and I can assure you we don't want to cut anybody short, but in the interest of time, if you can do that, we would be appreciative.
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Why don't we start with Mr. Touton?
Mr. TOUTON. Thank you, Mr. Chairman, Members of the Committee. I appreciate this morning's opportunity——
Mr. COBLE. Mr. Touton, if you would suspend, I have just been advised that the Judiciary Committee bill is on the floor now, and if you all would suspend, and if any Members of the panel want to go to the floor to take part in that debate, feel free to do so. I am told that this should not last more than 10 to 15 minutes, so if you all will stand at ease, and then we will resume when that bill is completed. Thank you.
[Recess.]
Mr. COBLE. Well, surprisingly enough, when they said 10 minutes, they meant 10 minutes, so we are ready to resume. Mr. Touton, you will not be penalized for your first 10 seconds. We will give those back to you. So, Mr. Touton, if you will proceed.
STATEMENT OF LOUIS TOUTON, VICE PRESIDENT, INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
Mr. TOUTON. Thank you, Mr. Chairman. I do appreciate the opportunity to be here this morning to provide a status report on progress——
Mr. COBLE. Could you speak into the microphone, please? Thank you, Mr. Touton. I think you have to switch that button.
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Mr. TOUTON. All right, there is the solution. I do appreciate the opportunity to provide a status report this morning on progress toward a controlled expansion of the Internet domain name system. This careful process, which has been many years in the making, is approaching an important milestone: the actual expansion of the name space in a manner that will enhance the Internet as a trustworthy medium for commerce, culture, and expressive activities.
The process, as many have noted, has been a long one, but it has been important to take the time to do it right because the negative consequences of doing it wrong can be significant. For the past 2 years this process has been conducted by the private sector in response to the U.S. Government's conviction that the technical coordination of the global Internet is best accomplished by the cooperative and responsible efforts of all the Internet's stakeholders.
The vehicle for this process is the Internet Corporation for Assigned Names and Numbers, usually known as ICANN. While 2 years ago the success of this vehicle seemed improbable to many, it has proved remarkably viable as a means for reconciling diverse interests.
After a thorough, 18-month-long process in which all viewpoints were considered, in November 2000 ICANN selected seven proposals for new top level domains. Since then, the proponents of the four largest domains, which are .biz, .info, .name, and .pro, have negotiated with ICANN toward developing legal agreements under which the top level domains will be operated.
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In late February, ICANN achieved closure on the language of a base agreement with these four operators. That agreement was posted on the ICANN web site, and the public comment on it has been overwhelmingly favorable. We are hopeful that the last details will soon be finalized and that the new top level domains can begin taking registrations in the third quarter of this year.
The drafting and negotiation of the agreements has touched on many issues of interest to intellectual property owners. They are, first, dispute resolution. All four of the large top level domains will employ the Uniform Dispute Resolution Policy established by ICANN for the speedy resolution of disputes where a trademark owner alleges harm arising from an abusive domain name registration.
Second, start-up provisions. The agreements have several provisions designed to minimize disruption during the start-up phase of the new top level domains. We have no recent real world experience on how best to introduce a new top level domain, so we have engaged in detailed planning. This has involved extensive consultations with the Internet community, including intellectual property interests. The resulting plans for the four top level domains take somewhat different approaches to the start-up protocol, and we will closely monitor each of these as they progress.
Thirdly, three of the four top level domains, these large top level domains, have restrictions of one sort or another on who may register within them. The use of restrictions, if properly implemented, can reduce domain name trademark disputes. The three restricted top level domains have crafted detailed statements of the restrictions for each of them, as well as appropriate mechanisms for enforcement of the restrictions.
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And, fourth, ''Whois'' data. It is imperative that registration data be transparently available so that abuses can be located. All of the four top level domains will be using a very robust ''Whois'' system.
The next steps in the process are the finalization of the remaining details of the agreements with the operators of each of the four top level domains; the posting of the documents reflecting those agreements; and the signing of the agreements. After approval by the U.S. Department of Commerce, the operators will undertake their well-planned programs for deploying the new domains.
Finally, I should say that, as in any process of this complexity, there are likely to be a few glitches. I do believe, however, that the careful, step-at-a-time process being followed will keep these to a minimum.
Thank you for allowing me to participate in this hearing today.
[The prepared statement of Mr. Touton follows:]
PREPARED STATEMENT OF LOUIS TOUTON, VICE PRESIDENT, INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
I. INTRODUCTION
Mr. Chairman and members of the subcommittee, I appreciate the opportunity to appear here today and offer a report on the evolution of the Internet's domain name system and its effects on intellectual property.
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In the fall of 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) was formed by a broad array of Internet stakeholders in response to an initiative of the United States Department of Commerce to transfer some of the Internet's technical coordination functions to the private sector. ICANN itself is a unique entity, but it follows a great tradition of finding and using practical means to address problems that stand in the way of progress. Several years ago, the US government was confronted with the fact that its agency assignments for coordination of Internet activities were seriously lagging the rate at which the Internet was growing, especially in areas related to commercial use. To very much shorten an interesting story, the result of scrutiny of the issues involved was a judgment that the most appropriate solution was to entrust the management of a small set of key technical infrastructure management and coordination responsibilities to the private sector. That judgment led the US Government to call on the private sector to form a global consensus development body to assume these responsibilities, and ICANN was formed by the Internet community as a private-sector, non-profit, global consensus-development entity in response to that call.
ICANN's responsibilities focus on a few aspects of the Internet's technical management, but the Internet community's decisions it implements can have non-technical effects. It is also important to keep in mind that ICANN's responsibilities involve only specific parts of the Internet's vast technical infrastructure, and that most societal effects of the Internet have little to do with ICANN's technical-coordination responsibilities other than establishing their context. Despite these limitations, in its deliberations ICANN considers and seeks to minimize or ameliorate harmful any non-technical effects that may arise from its actions.
Today I would like to describe some of the effects on intellectual property of recent evolutionary steps involving the Internet's domain-name system, specifically the planned deployment of seven new global top-level domains.
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II. BACKGROUND ON THE DOMAIN-NAME SYSTEM.
In recent years, the domain-name system (DNS) has become a vital part of the Internet. The function of the domain name system is to provide a means for converting easy-to-remember domain names into the numeric addresses that are required for sending and receiving information on the Internet. The DNS provides a translation service that permits Internet users to locate Internet sites by convenient names (e.g., http://www.house.gov) rather than being required to use the unique numbers (e.g., 143.231.86.196) that are assigned to each computer on the Internet.
The Internet engineering community devised the DNS in the early 1980s.(see footnote 1) One of the Internet's prominent engineers, Dr. Jon Postel took on responsibility for coordinating a decentralized system of computers throughout the Internet to implement the DNS. (Now deceased, Dr. Postel was the creator of the IANA function that preceded ICANN, and the principal force behind the creation of ICANN.) These computers are organized in a hierarchical manner, with ''root nameservers'' at the highest level that point to nameservers for top-level domains (e.g., .gov), that in turn point to nameservers for second-level domains (e.g., house.gov), and so on. In all there are 253 top level domains, of which the greatest number are assigned to the national, or ''country-code,'' top level domains such as .uk for the United Kingdom, .jp for Japan, or .tv for the western Pacific island of Tuvalu.
Upon the deployment of this new system in 1985, Internet users worldwide could point their computers to the root nameservers, and use them to receive the translation services (i.e. from names to numbers) that the DNS provides. The system is highly redundant and decentralized, consisting of almost 100,000 nameservers arranged in a topologically and geographically distributed system. It has repeatedly demonstrated its technical resilience and robustness, including during last year's Y2K event during which the system functioned smoothly without interruption.
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As a first step in deploying the DNS nameserver system, Dr. Postel arranged for operation of the root nameservers by a group of expert and trusted individuals and organizations throughout the world, who each volunteered to operate a root nameserver. This group now numbers nine organizations, plus the U.S. Government; they operate the thirteen root nameservers on a completely voluntary, free-of-charge, and public interest basis. The following chart shows the identities and locations of the organizations operating the DNS root servers:
A.eps
At lower levels in the DNS hierarchy (for example .com), the operators of the nameservers and the associated registries have received compensation, first by governmental subsidies in the late 1980s and early 1990s and then, beginning in the mid-1990s, by charging those who wished to register domain names within the system. The root nameserver system itself, however, has always been operated on a voluntary, public-sevice basis and without user fee (or even government subsidy, though the U.S. Government does contribute by operating some of the thirteen root nameservers). As a result, the system has become broadly accepted by Internet users worldwide as an integral feature of the Internet.
III. THE INTRODUCTION OF NEW TOP-LEVEL DOMAINS.
A. Selection
Since long before ICANN's establishment, there has been intense interest in the Internet community in the introduction of new globally available top-level domains. As the Internet has evolved from primarily a US-based academic and research network to a ubiquitous global commercial medium, there has been a great clamor to augment and diversify the top-level domains established in the mid-1980s when the DNS was originally deployed. But the introduction of globally available top-level domains presents both technical and non-technical challenges. While most Internet engineers believe that some number of additional top-level domains can be added without serious risks of instability, there is considerable uncertainty about how many could be added without adverse side effects, and very few engineers have been willing to absolutely guarantee that there was zero risk of instability. Many involved in the Internet have also cited the potential for a confusing deployment process or the possibility of prevalent abusive registrations as possible pitfalls in introducing top-level domains. Given the increasingly critical role the Internet now plays in everyday commercial and personal life, the almost uniform consensus in the community has been to be cautious and prudent in this process.
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Because ICANN is a consensus development body that relies on bottom-up policy development, the issues of whether and how to introduce new top-level domains were first taken up by the Domain Name Supporting Organization (DNSO), the ICANN constituent body responsible for name policy issues. The DNSO organized a Working Group, which recommended that a small number (6–10) of top-level domains be initially introduced, and that the effects of that introduction be evaluated before proceeding further. That recommendation was forwarded to the Names Council, the executive body of the DNSO, which reviewed the Working Group recommendation and public comments on it, and recommended to the ICANN Board that it establish a ''policy for the introduction of new top-level domains in a measured and responsible way.'' The Names Council suggested that ''a limited number of new top-level domains be introduced initially and that the future introduction of additional top-level domains be done only after careful evaluation of the initial introduction.''
Consistent with the ICANN bylaws, the ICANN Board accepts the recommendations of Supporting Organizations if the recommendations meet certain minimal standards designed to ensure that they truly represent a consensus position. Thus, the Names Council recommendation was published for public comments, and following the receipt of numerous public comments, the ICANN Board established a procedure for selection of a limited number of top-level domains intended to lead to a measured and responsible introduction.(see footnote 2)
In early August 2000, ICANN posted nine factors for selection of new top-level domains and called for proposals from companies and groups interested in operating them. The application process required the filing of a detailed proposal speaking to all the factors. The application deadline was early October, and by that time forty-four complete applications were received from those proposing to introduce one or more new global top-level domains. An extensive community-based consultation process was then held, including intellectual property interests, which ultimately led, on November 16, 2000, to the selection of proposals for seven top-level domains to move into the process of negotiation of appropriate agreements between ICANN and the proponents:
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B.eps
As can be seen, top-level domains with a great diversity in intended purposes were selected. The right-hand column in the above table reflects that they fall into two broad categories: commercially operated top-level domains of broad appeal (known as ''unsponsored'' top-level domains) and narrowly targeted top-level domains operated by non-profit sponsoring organizations (known as ''sponsored'' top-level domains).
B. Negotiations Toward Agreement.
Since November, we have been in the process of negotiating and drafting agreements with the selected applicants. Since it is hoped these agreements will be templates for future agreements, we are taking great care to make sure that the structure and terms are replicable in different environments. Since these agreements will contain the promises and commitments under which the applicants will have to live for some time, the applicants are also being very careful.
The initial focus of the negotiation process has been on the four ''unsponsored'' top-level domains: .biz, .info, .name, and .pro. To promote uniformity in the basic terms under which these top-level domains will be operated, the goal has been to achieve a uniform base agreement with all four applicants and to accommodate differences by use of appendices to the base agreement (twenty-four in all) covering technical standards, start-up plans, restrictions on the availability of registrations within the domains, and other items specific to each top-level domain.
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In late February, ICANN and all four of the selected unsponsored top-level domain operators achieved agreement on the language of the uniform base agreement. That agreement was posted on ICANN's web site(see footnote 3) and the public was given the opportunity to comment both over the web and in an in-person held at ICANN's meeting in mid-March. ICANN and the four selected operators have also reached agreement in many, but not all, of the appendices. Work is continuing and as appendices are completed they are posted for public comment.
At its meeting in mid-March, the ICANN board of directors considered the public comment and determined that the structure of the agreement language that had been negotiated was a sound approach for the unsponsored top-level domains. The board called for prompt completion of the negotiation and drafting process and authorized the agreements to be entered once the language of the agreements and appendices is completed and has been posted for seven days. We expect that at least one of the four sets of appendices will be completed in approximately two weeks. That should allow public announcements of the roll-out schedule for the top-level domains to begin as early as late May of this year. Some of the domains are likely to begin actual registrations in the third quarter of this year.
C. Intellectual-Property Aspects.
The agreements and appendices primarily cover the technical and economic terms under which the top-level domains will be operated. They do, however, have some contractual provisions designed to facilitate the protection of intellectual property rights:
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1. Dispute Resolution. All four of the unsponsored top-level domains will employ the Uniform Dispute Resolution Policy established by ICANN for the fair and cost-effective and speedy resolution of disputes where a trademark owner alleges that a domain name identical or confusingly similar to its trademark has been registered and used in an abusive manner. The policy contemplates that good-faith trademark disputes are to be resolved in court, and provides that court decisions will be promptly implemented by the domain-name registrars.
2. Start-up provisions. The introduction of the new top-level domain is likely to lead to an initial surge in registrations. This surge can challenge the ability of trademark owners to defend their marks, as well as the more general proposition that all those wishing to register names not subject to trademark should have a fair chance to do so. Because no global top-level domains have been introduced for over fifteen years, we have no real-world experience concerning how to meet these challenges in the now-heavily-commercial Internet. Accordingly, based on extensive consultations with the Internet community, including intellectual property interests, the selected operators have taken great care to design start-up protocols to address intellectual property issues specifically and fairness concerns in general. These plans take somewhat different approaches, the achievements of which will be closely monitored with the purpose of developing real-world experience as to what works best. All of the approaches incorporate detailed publicity plans, so that intellectual property owners and potential registrants will have the information they need to protect their interests.
3. Restrictions. Three of the selected unsponsored top-level domains (.biz, .name, and .pro) have restrictions of one sort or another. The use of restrictions, if properly implemented, offers the potential to avoid consumer confusion about Internet naming by segregating similar names associated with different activities, and thus holds some promise to lessen the domain-name/trademark issues that have arisen with undifferentiated commercial domains such as .com. The three restricted unsponsored top-level domains have extensively consulted with the intellectual-property and other concerned entities to achieve an appropriate statement of the restrictions for each, as well as an appropriate mechanism for enforcement of the restrictions.
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IV. CONCLUSION
The process of introducing new global top-level domains has been a long one, and the limited number of top-level domains that will be introduced initially is disappointing to some in the Internet community. The community generally realizes, however, that it has limited experience in how best to deploy new top-level domains or what the exact effects will be. In recognition of these limitations, ICANN has established a very careful, step-at-a-time process for introducing top-level domains. This approach allows detailed monitoring of the process by all affected, including intellectual property owners. The applicants selected to operate the top-level domains have shown a highly responsible and careful approach to protection of the rights of others in the deployment of these new top-level domains. While no process can be guaranteed to be foolproof, based on the careful progress that has been made to date we are hopeful that the introduction of these new top-level domains will proceed in a manner that protects the rights and expectations of all involved.
Mr. COBLE. Thank you, Mr. Touton.
Ms. Broitman.
STATEMENT OF ELANA BROITMAN, DIRECTOR, POLICY AND PUBLIC AFFAIRS, REGISTER.COM
Ms. BROITMAN. Mr. Chairman, Congressman Berman, Members of the Committee, thank you for inviting me to appear before you today, and I commend the Committee for holding this important hearing.
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I represent Register.com, an equity partner in RegistryPro, which is the new registry selected by ICANN to operate the .pro TLD. Before I discuss the .pro intellectual property provisions, allow me to briefly describe .pro itself.
Just as introduction of competitor registrars had improved technology and customer support and fostered innovative new products on the web, the new registries should similarly——
Mr. COBLE. Ms. Broitman, if you could pull that mike a little closer, I am having a little difficulty hearing you, as well.
Ms. BROITMAN. Sorry. Is that better?
Mr. COBLE. That is better.
Ms. BROITMAN. Okay. Sorry about that.
The .pro TLD is a unique example of the innovation that will be added by the introduction of new TLDs. Building on the restricted model of .gov or .edu, the .pro TLD targets a restricted class of professional registrants such as lawyers, doctors, or accountants.
As we know, consumers are experiencing increasing levels of uncertainty in searching for professional web sites. RegistryPro plans to answer that with a trusted global directory of professional domain names, whereby patients or clients have a degree of confidence that the web sites that they contact are operated by verified professionals.
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Now, the .pro web address may not guarantee the legal advice a client may get, but it would give the consumer a level of confidence that the web site is indeed held by a qualified lawyer, and indeed by the very lawyer whose name is cited in the ''Whois'' data base. To accomplish this mission, RegistryPro will couple concrete registration qualifications with authentication requirements.
RegistryPro is establishing this verification system with the help of an advisory board of professional associations and with regulatory bodies. RegistryPro is not reinventing the wheel in defining the professionals. We are partnering with professional bodies that have spent years determining these issues, and will take their lead. With this advisory board, RegistryPro will thus establish policies regarding who qualifies as a doctoral registrant and what evidence is required to prove such qualification.
Under RegistryPro's verification method, registrants would be required to send in evidence of their credentials, for example, a copy of a bar certification. Such evidence would be examined, verified, and maintained on file, and then annually the good standing of a .pro registrant would be confirmed. While committed to these strict policies, RegistryPro will accept a representative selection of qualification evidence standards in order to accommodate the various jurisdictions' rules regarding professional standing.
We know that intellectual property issues are of paramount concern to this Committee, and we share your interest in appropriate protections. What I would like to do is just walk you through some of the policies we plan to implement in .pro.
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By its very nature, .pro will provide fewer opportunities for cybersquatting. The fact that RegistryPro will require proof of professional credentials would impose an additional screen against potential cybersquatters. Furthermore, cybersquatting would be less of an issue, as a number of the .pro names would be registered to individuals who generally don't trademark their name. And, finally, the target business sector itself is subject to professional ethics standards, is less likely to engage in cybersquatting, as they would not want to compromise their professional relations and reputation.
RegistryPro has also planned additional IPR policies and tools. First, we are going to adhere to the Uniform Dispute Resolution Policy. Second, RegistryPro adopted the Intellectual Property Constituency's proposal for a sunrise period. During this period, holders of registered trademarks will be pre-register their names.
To ensure that the sunrise period is used only for trademark protection, RegistryPro will post a sunrise registrant's trademark identification data, as well as the evidence of their professional credentials, in the publicly accessible ''Whois'' database. As an added precaution, we will allow challenges to the sunrise registrations on both the basis of lack of trademark as well as lack of professional credentials.
Third, RegistryPro would build a centralized, authoritative database of all .pro registrants' records, rather than have them scattered among various registrars, as is the case today in .com. Intellectual property holders could turn to a single place to garner the information necessary to police and protect their rights.
At launch, IPR holders would be able to search the centralized ''Whois'' database to police for cybersquatting. But, fourth, we are also building enhanced search tools to enable IPR holders to search for more derivations of their name in more fields and yield a greater number of matches.
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At the same time, RegistryPro respects consumer privacy and understands that registrars are subject to various jurisdictions, privacy laws, and rules. Therefore, while we are building enhanced searchability for IPR holders, the ICANN requirement regarding bulk access to the ''Whois'' database will be left at the registrar control level.
What are the next steps? Well, we hope to expedite the contract negotiations with ICANN so that RegistryPro can begin to offer its unique services, which we expect to set a new standard for the industry. Currently, as the Chairman had mentioned, there are companies outside of ICANN's reach that are attempting to establish alternative TLDs.
The Committee has probably heard concerns that some of these alternatives may not provide the same level of IPR protection afforded by ICANN-approved TLDs such as .pro. We believe an expeditious launch of .pro and other new TLDs will help satisfy some of the consumer demand that is indeed driving a market for these alternatives. An expeditious launch would help to raise the industry standard.
Allow me to conclude by hoping that you will encourage such an expeditious finalization of the contract. Mr. Chairman, Ranking Mmember Berman, Members of the Committee, it has been my pleasure to testify today. I appreciate the opportunity.
[The prepared statement of Ms. Broitman follows:]
PREPARED STATEMENT OF ELANA BROITMAN, DIRECTOR, POLICY AND PUBLIC AFFAIRS, REGISTER.COM
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Mr. Chairman, Members of the Committee,
Thank you for inviting me to appear before you today. I commend the Committee for holding this hearing. Your role is important to continuing the stable and innovative growth of the Internet. I think you will hear today that the new Top-Level Domains (''TLDs'') authorized by the Internet Corporation for Assigned Names and Numbers (''ICANN'') provide an opportunity to enhance intellectual property and privacy policies.
I am here representing Register.com, an equity partner in RegistryPro, the registry that was selected by the ICANN to operate the .pro TLD(see footnote 4) RegistryPro is a new company formed by Register.com, one of the leading registrars on the Internet today, and Virtual Internet Ltd, a top European registrar.
I appreciate the opportunity to describe the advances offered by the .pro TLD. Building on the restricted model of .gov, .edu, and .mil, the .pro TLD targets a restricted class of professional registrants—such as doctors, lawyers, and accountants. Thanks to its verification mechanism, the .pro TLD will provide an unprecedented opportunity to connect confirmed professionals with patients and clients.
INDUSTRY OVERVIEW
Please allow me to briefly review the structure and growth of the domain name market in order to provide a fuller background.
Securing a domain name, or Internet address, is the first and fundamental step for businesses, individuals, and organizations that are building a presence on the web. Before setting up a website or launching e-commerce, a consumer contacts a registrar, such as Register.com, to secure a domain name, such as www.house.gov. Registrars maintain contact with the consumer, invoice the customer, handle all customer services, and act as the technical interface to the registry on behalf of the customer.
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A registry, such as VeriSign Global Registry Services for .com, .net and .org, maintains the list of available domain names within its TLD and allocates those names on a first come, first served basis. Registrars get the domain names for the consumer by purchasing them from the registry that manages that TLD.
As this Committee knows, the Internet, and the domain name market in particular, has grown and expanded at a rapid pace. From 1993 to as recently as two years ago, a single company, Network Solutions (''NSI''), bought by Verisign, was both the only registry and the sole registrar for .com, .net, and .org TLDs. Presently, these TLDs are the only globally available generic domain addresses.
In determining the best manner to introduce competition and oversee the domain name system, the Department of Commerce called for the creation of a not-for-profit corporation, ICANN. To introduce competition, ICANN has taken two steps. First in April 1999, ICANN launched a test bed of five registrars. Register.com was the first registrar to go ''live'' and register .com, .net, and .org names. Although NSI remained the sole registry for the com, .net, and .org TLDs and its registrar business continues to control 53% of the generic TLD market, today there are approximately 80 operational accredited registrars.
In November 2000, ICANN took the second step toward competition by approving the introduction of seven new global TLDs to generate competition in the registry business. RegistryPro was selected to manage the .pro TLD, which is restricted to the professional business sector. Other new TLDs include unrestricted, personal, and non-profit domain name sectors (.biz, .info, .name, .museum, .coop, and .aero).
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The domain name market has grown to about 29 million .com, .net, and .org domain names, the growth having increased dramatically since the days that NSI was the sole registrar, from 8–9 million in 1999, to more than 20 million in 2000, the first full year of competition. This growth is fundamental to the health and competitiveness of registrars and other Internet-related businesses, and the introduction of new TLDs is expected to likewise expand the opportunities.
INNOVATION AND CONSUMER CHOICE WITH THE NEW TLDS
Competition among registrars has improved technology and customer support, introduced price competition, and fostered innovative new products to better serve the needs of domain name holders and Internet businesses.
The new registries will similarly deliver value. First, competitive registries will have an incentive to provide improved services. Second, consumers can register for the web address of their choice, as the best addresses, in many cases, are already taken in the .com, .net and .org TLDs. Third, consumers will be able to distinguish their web address based on the TLD they chose—we believe, for example, lawyers would prefer .law.pro and accountants, .cpa.pro.
THE .PRO TLD
The .pro TLD is a unique example of the choice and innovation added by the introduction of new TLDs.
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RegistryPro's mission is to create a reliable, sustainable registry for professionals. With the proliferation of Internet usage, consumers are experiencing increasing levels of uncertainty on the Internet, particularly in searching for legitimate professional sites. By coupling concrete registration qualifications with authentication requirements, and working with professional associations, RegistryPro would essentially establish a trusted global directory of professional websites. The .pro name would not guarantee the legal advice; but it would give the consumer a level of confidence that the website is held by a qualified lawyer, and indeed by the very lawyer whose name is sited in the whois database.
Verification
In devising the .pro trusted addressing system, RegistryPro is reaching out to professional associations and regulatory bodies, to craft the mechanisms for verifying professional credentials. The goal is to provide strict policy guidance governing who may register for a .pro name and what evidence is required to prove such qualification. Registrants would be required to send in their evidence, which would be examined, verified, and maintained on file. On an annual basis, the qualification of the .pro registrant would be confirmed to determine that the registrant continues to be in good standing in his or her profession.
While being strict, RegistryPro also recognizes the need for flexibility in order to accommodate the various jurisdictions' rules with regard to professional qualifications. Therefore, RegistryPro will accept a representative selection of qualification and evidence standards.
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RegistryPro will not reinvent the wheel in defining professionals. RegistryPro would form an Advisory Board of professional bodies, which have spent years determining these issues. We would take their lead.
RegistryPro would reinforce its policies with reliable and robust technology, which will not only improve .pro's verification and registration services, but also raise the standards of reliability, responsiveness and world-class intellectual property protections for other registries.
THE .PRO INTELLECTUAL PROPERTY PROTECTIONS
We know that Intellectual Property issues are of paramount concern to this Committee, and we share your interest in appropriate protections. We believe that this requires a careful balancing act between intellectual property and privacy. What I'd like to do is walk you through some of the Intellectual Property and privacy policies we plan to implement with the .pro TLD. RegistryPro's verification and intellectual property rights (IPR) protection policies will set it apart from other registries.
Restricted Class
By its very nature, .pro will provide fewer opportunities for cyber squatting. Fundamentally, .pro would be based on proof of professional credentials, which would impose an additional screen against potential cyber squatters. Furthermore, the .pro market attracts fewer cyber squatters as a number of the .pro domain names would be registered by professional individuals, who do not trademark their names. Finally, the target business sector is a trusted professional class, members of which are subject to professional ethics standards. They are less likely to engage in cyber squatting, particularly as they would not want to compromise their professional relationships and reputations.
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UDRP
The Uniform Dispute Resolution Policy (UDRP) will apply to both RegistryPro and the .pro registrars.
Sunrise Protection
RegistryPro adopted the ICANN Intellectual Property Constituency's proposal for a sunrise period. During this period, holders of registered trademarks will be able to pre-register their marks as a domain name in the .pro.
The sunrise registrants would additionally have to pass the professional verification process, which would further screen out cyber squatters.
RegistryPro would set up an enforcement mechanism to ensure that the pre-registration period is used only for trademark protection. Registrants would be required to provide the registration number, date, and jurisdiction for their trademark. This information would be posted in the whois database, which is available to public scrutiny.
In order to further limit cyber squatters and any abuse of this sunrise period, there would be an opportunity to challenge the sunrise registrations on the basis of either lack of a trademark or lack of professional qualification.
Centralized Whois
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RegistryPro would house the authoritative database of all .pro registrants' records at the registry level, rather than scattered among various registrars, as is the case today in .com, .net, and .org. IPR holders could turn to a single place to garner the information necessary to police and protect their rights.
Enhanced Searchability
At launch, the RegistryPro centralized whois database would be publicly available, and IPR holders would be able to use the query service to search for cyber squatters. To further support IPR holders' ability to protect their rights, RegistryPro would build enhanced searchability to enable IPR holders search for more derivations of their name, in more fields, and yield a greater number of matches.
Privacy
At the same time, RegistryPro respects consumer privacy. Registrars are bound by different jurisdictions' protections for data privacy. Therefore, while RegistryPro would build enhanced searchability for IPR holders, the ICANN requirement regarding bulk access to the whois database would be left to registrar control.
Best Practices for Registrars
RegistryPro would allow all ICANN accredited registrars that comply with .pro policies and to participate in the .pro TLD. Compliance with the terms and conditions of the registry-registrar agreement will be enforced via trusted independent arbitration providers.
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CONCERNS REGARDING THE FUTURE OF THE DOMAIN NAME SYSTEM
As we move forward in launching the .pro TLD, we have two concerns we want to highlight for you.
First, it is important to expedite the contract negotiations on the new TLDs so that RegistryPro can begin to offer its unique services, which we hope will set a new standard for the industry. Currently, there are companies outside of ICANN's reach that are attempting to establish alternate TLDs. The Committee has probably heard concerns that some of these alternative TLDs may not provide the level of IPR protection that is afforded by the ICANN-approved TLDs such as .pro. An expeditious launch of .pro would help satisfy some of the consumer demand for new TLDs and help to drive the industry standard to a higher common denominator.
Second, recent renegotiations of VeriSign's (the .com registry) obligations raise the bar to the fledgling new TLD entrants. As you may know, on March 1st, ICANN announced that its staff has negotiated new agreements with VeriSign. In 1999, the Department of Commerce and ICANN had secured an agreement with Network Solutions (bought by VeriSign) that allowed the company to maintain sole ownership of the .com, .net and .org registry and its registrar until 2003. In order to support competition, however, that 1999 agreement required Network Solutions to sell either business by May 10, 2001, for which the company would receive an automatic extension of the registry through November 2007.
If approved by the ICANN Board and the Department of Commerce, the new agreements would allow VeriSign to retain both its wholly owned registry and registrar businesses. Furthermore, the new agreements would grant VeriSign a presumption of a perpetual term for the .com registry.
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The VeriSign registry has amassed significant capital, market share and experience as a result of its government-granted monopoly. The fledgling new TLD registries already have an uphill battle in entering a market dominated by a registry of about 29 million names, with such resources. If the proposed agreements are adopted as currently drafted, VeriSign will be free to continue to cross-subsidize its registrar and registry businesses. In contrast, RegistryPro and other new TLDs would be in a start-up phase, during which time they will need to divert their registrar profits to building the registries.
Furthermore, the presumption of a perpetual term for the .com registry provides VeriSign with the predictability to fund and develop new services to increase its registry's market, while RegistryPro, much like other new registries, is expected to ''prove the concept,'' establish a market and develop improved IPR and verification services (which require substantial resources) in the face of a contract with a limited six-year term.
The VeriSign registry provides far fewer IPR protections than those planned by .pro.(see footnote 5) While RegistryPro continues to be dedicated to providing its IPR and verification advances, this increased competitive windfall to the incumbent registry would require RegistryPro to divert some of the resources from these new services toward an increased marketing and operational budget.
I bring these issues to your attention because they are relevant to your review of how the new TLDs will enhance IPR protection. RegistryPro is committed to providing the services that it had described in its application. But we believe it is important to recognize that our ability to deliver depends, in part, on an expeditious finalization of the contract with ICANN and a level playing field with the .com registry incumbent. We hope that the Committee uses its oversight to examine the impact of these agreements on competition.
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Mr. Chairman, Members of the Committee—it has been my pleasure to testify today. Thank you for the opportunity.
Mr. COBLE. Thank you, Ms. Broitman.
We have a vote on, but let's try to get Mr. Neuman's testimony in before we go to the vote.
STATEMENT OF JEFFREY J. NEUMAN, DIRECTOR, LAW AND POLICY, NEUSTAR, INC.
Mr. NEUMAN. Good morning. My name is Jeff Neuman, and I am the director of law and policy for NeuStar, Inc., a neutral third party provider of clearinghouse and database administrative services. I am also a policy advisor for NeuLevel, a joint venture between NeuStar and MelbourneIT, an Australian provider of domain name services.
I appreciate the opportunity to appear before the Subcommittee to discuss the vast array of intellectual property protections .biz provides all trademark owners, including those with nationally registered trademarks anywhere in the world; applications pending with any of the national or state trademark offices; and common law rights in their trademarks.
Of all the new TLDs being introduced during ICANN's proof of concept phase, .biz is the only new top level domain to consider all of these intellectual property holders. We believe that NeuLevel's unique approach to intellectual property rights was one of the primary reasons that NeuLevel was selected by ICANN, and we hope that it will serve as a model for the introduction of new TLDs by ICANN in the future.
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NeuLevel's application to operate the .biz TLD, which contained each of the intellectual property services described below, was approved by ICANN in November, 2000. Since then, NeuLevel has been working closely with the intellectual property and business constituencies of ICANN, the World Intellectual Property Organization, and the Internet community to further define, clarify, and expand these intellectual property services.
These include a Start-up Intellectual Property Notification Service we call SIPN; a Start-Up Dispute Resolution Process; compliance with the UDRP; a policy against domain name speculators; and, finally, a fully centralized ''Whois'' service. I will briefly describe the SIPN process, and ask that a more complete explanation be placed in the hearing record at this point.
The SIPN service is designed to assist individuals and entities with intellectual property rights in registered and common law trademarks and service marks in protecting their rights. Each domain name application in the .biz TLD submitted through a registrar will be compared to a database of trademark claim forms operated by NeuLevel. For each match between a domain name contained on a domain name application and a trademark identified in a trademark claim form, notifications will be provided to the prospective registrants that individuals or entities have claimed IP rights over that domain name.
All disputes between a third party and a domain name registrant regarding the registration of an Internet domain name that is subject to the SIPN service shall be decided under what we call the SUDRP, or the Start-Up Uniform Dispute Resolution Policy, which incorporates many of the elements of the UDRP.
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Because many of the disputes under the SUDRP will be brought by complainants prior to actual use of the domain name by the domain name registrant, the SUDRP, unlike the UDRP, will only require that the complainant prove that the domain name has been registered in bad faith or is being used in bad faith. Under the current UDRP, a complainant must prove that the domain name was both registered in bad faith and used in bad faith.
NeuLevel will also strictly follow the UDRP for bad faith, abusive domain name registrations. The .biz domain name may only be used or intended to be used primarily for bona fide business or commercial purposes.
As a result of extensive consultations with the IPC, NeuLevel has included a provision in its restrictions document which we believe does more to assist IP owners than any of the protections that exist in any existing or newly created TLD. The .biz restrictions document provides that registering a domain name solely for the purposes of, one, selling, trading or leasing the domain name for compensation, or, two, the unsolicited offering to sell, trade or lease the domain name for compensation, shall not constitute a bona fide business or commercial use.
Violations of the .biz restrictions shall be enforced by third parties through a restrictions dispute resolution policy like that of the UDRP.
The ''Whois'' service. In a statement issued to ICANN, the ICANN board, prior to ICANN's selection of new TLDs, the IPC indicated that certain information about the domain name registrant must be available on a publicly accessible database. In this regard, NeuLevel is completely in agreement with the IPC. Thus, .biz ''Whois'' shall include all the current information required by ICANN.
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In addition, the ''Whois'' database will initially be searchable by domain name and the registrant's name. NeuLevel is also working on developing a fee-based system whereby IP owners will be able to search other fields in the ''Whois'' data base, both through key words or Boolean-type searches.
Just a little note about the sunrise policy that is advocated by the IPC. The IPC advocates a sunrise policy which has been incorporated into the rollout of some of the newly selected TLDs. Under the IPC proposal, however, only owners of national trademark registrations are able to seek protection.
NeuLevel, according to its own code of conduct, is a neutral third party service provider and is concerned about favoring the rights of one class of registrants, named those with registered trademarks, over any other class of registrants, including common law right owners or those trademark owners within the application process. Thus, NeuLevel has never advocated the adoption of the sunrise.
In addition, I have participated in several of the working groups of ICANN's Domain Name Support Organization that were tasked with evaluating proposals on intellectual property protections in the new TLDs, including the sunrise. The sunrise has never received consensus support in the Internet community, or even among IP owners themselves.
In fact, the U.S. Small Business Administration issued a statement on April 14, 2000, which stated that sunrise contained ''foundational flaws'' that prevented the office from endorsing its adoption. I request that this letter be made part of the hearing record, as well.
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The sunrise's lack of support from all intellectual property owners and the Internet community, coupled with the SBA's statement and NeuLevel's concern about favoring the rights of one class of registrants over any other class of registrants, led NeuLevel to adopt the SIPN service, which many in the IP constituency have called a workable alternative.
I thank the Subcommittee for giving me the opportunity to testify and to summarize the numerous IP protections incorporated in the .biz TLD.
[The prepared statement of Mr. Neuman follows:]
PREPARED STATEMENT OF JEFFREY J. NEUMAN, DIRECTOR, LAW AND POLICY, NEUSTAR, INC.
Good morning. My name is Jeff Neuman, and I am the Director of Law and Policy for NeuStar, Inc. (''NeuStar''), a neutral third party provider of clearinghouse and database administrative services. NeuStar serves as the Numbering Plan administrator and the Local Number Portability administrator for North America. I am also a policy advisor for NeuLevel, a joint venture between NeuStar and MelbourneIT, Ltd. (''MIT''), a Melbourne, Australia provider of domain name services. NeuLevel was recently selected by the Internet Corporation for Assigned Names and Numbers (''ICANN'') to operate the Registry for the top level domain name ''.biz''.
I want to first congratulate Chairman Howard Coble on his reappointment as Chairman of the Subcommittee on Courts, the Internet and Intellectual Property. I appreciate the opportunity to appear before the Subcommittee to discuss the array of intellectual property protections .biz affords all trademark owners, including those with: (i) federally registered trademarks in the United States Patent and Trademark Office (''USPTO''); (ii) state trademark registrations; (iii) applications pending either with the USPTO or individual state trademark offices; and (iv) common law rights in their trademarks. As you will hear in this testimony, of all of the new TLDs being introduced during ICANN's ''Proof of Concept'' phase, .biz is the only new Top Level Domain name to consider all of these intellectual property holders, because NeuLevel believes that each have valid trademark rights that must be taken into consideration in the introduction of new TLDs. We believe that NeuLevel's unique approach to intellectual property rights was one of the primary reasons that NeuLevel was selected out of the 47 applicants by ICANN during the ''Proof of Concept'' stage, and we hope that it will serve as a model for the introduction of new TLDs by ICANN in the future.
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NeuLevel's application to operate the .biz TLD, which contained each of the intellectual property services described below, was approved by ICANN in November of 2000. Since then, NeuLevel has been working closely with the intellectual property and business constituencies of ICANN, the World Intellectual Property Organization, and the Internet community to further define, clarify and expand these intellectual property services. These services include: (i) a Start-up Intellectual Property Notification services (''SIPN''); (ii) a Start-up Dispute Resolution Process (''SUDRP''); (iii) compliance with the Uniform Dispute Resolution Policy (''UDRP''); (iv) a policy against domain name speculators and; (v) a fully centralized WHOIS service. I will briefly describe the SIPN process and ask that a more complete explanation be placed in the record at this point.
A. Start-up Intellectual Property Notification Service (SPIN)
The Start-Up Intellectual Property Notification service is designed to assist individuals and entities with intellectual property rights in registered and common law trademarks and service marks (''Trademarks'') in protecting their rights. Each domain name application in the .biz TLD submitted through an ICANN-accredited registrar will be compared to a database of Trademark claim forms operated by NeuLevel. For each match between the domain name contained on a domain name application and a Trademark identified on a Trademark Claim Form (as defined below) notifications will be provided to the prospective registrants that individuals or entities have claimed intellectual property rights over that domain name.
B. Start-Up Dispute Resolution Process (SUDRP)
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All disputes between a third party and a domain name registrant regarding the registration of an Internet domain name that is subject to the SIPN service shall be decided under the Start-Up Dispute Resolution Policy (''SUDRP''), a unique dispute resolution solution that incorporates many elements of the Uniform Dispute Resolution Policy, (UDRP).
Because many of the disputes under the SUDRP will be brought by complainants prior to actual use of the domain name by the domain name registrant, the SUDRP, unlike the UDRP, will only require the complainant prove that domain name has been registered in bad faith or is being used in bad faith. Under the UDRP as adopted by ICANN, a complainant must prove that the domain name was registered in bad faith and used in bad faith. This not only will make it easier for valid trademark owners to enforce their intellectual property rights, but will also significantly limit cybersquatters.
NeuLevel has begun the process of contacting potential dispute providers for the SUDRP and is finalizing the SUDRP's exact policy and procedures. NeuLevel will coordinate with ICANN to publish the SUDRP's policy and procedures prior to the beginning of the .biz start-up procedures described above.
C. Compliance with the Uniform Dispute Resolution Policy (UDRP)
The UDRP has been praised by both the Intellectual Property community as well as the Internet community as a whole. Therefore, NeuLevel will also strictly follow the UDRP for abusive domain name registrations in which the domain name registrant is alleged to have violated the intellectual property rights of a third party by registering and using a domain name in bad faith. In fact, as set forth in section D below, a violation of the UDRP would also be a violation of the .biz Restrictions Document.
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D. Anti-Speculation Clause in Restrictions Document
The .biz domain name may only be used or intended to be used primarily for bona fide business or commercial purposes. In addition, all domain name registrants must agree to comply with the UDRP/Start-Up Dispute Process.
As a result of extensive consultations with the intellectual property constituency, NeuLevel has amended its .biz restrictions document to include a provision, which we believe does more to assist intellectual property owners than any of the protections that exist either in .com, .net, or .org, or any of the newly selected TLDs. The .biz Restrictions Document provides a unique anti-speculation clause which states that:
Registering a domain name solely for the purposes of (1) selling, trading or leasing the domain name for compensation, or (2) the unsolicited offering to sell, trade or lease the domain name for compensation, shall not constitute a ''bona fide business or commercial use'' of that domain name.
Violations of the .biz restrictions shall be enforced by third parties through a restrictions dispute resolution policy like that of the UDRP.
E. WHOIS
According to the Intellectual Property Constituency, in a statement issued to the ICANN Board prior to ICANN's selection of the new TLDs, in order to offer workable protection for intellectual property rights, certain information about the domain name registrant must be available on a publicly accessible database. In this regard, NeuLevel is completely in agreement with the Intellectual Property Constituency. Thus, .biz WHOIS shall include:
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second-level domain name and the TLD in which the second-level domain name is registered;
status of the second-level domain name, e.g., ''on hold'' or ''deleted'';
registrant's name and postal address;
administrative/technical contacts' name, postal address, e-mail address, telephone number and (if any) facsimile number;
original registration date, expiration date and date on which the database was last updated;
Internet Protocol addresses and corresponding names of primary and secondary nameservers for the SLD;
the domain name Registrant's self-certified description of the commercial/business use of the registered domain name; and
registrar's name and web site address or hyperlink thereto.
In addition, the WHOIS database will be initially searchable by domain name and the registrant's name. NeuLevel is also working on developing a fee-based system whereby intellectual property owners will be able to search by many of the other fields contained in the WHOIS database, through key word and Boolean searches.
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IPC'S RECOMMENDED SUNRISE POLICY
The Intellectual Property Constituency (''IPC'') advocates a ''Sunrise Proposal'' which has been incorporated into the rollout of some of the selected new TLDs. During this ''Sunrise Period'' owners of nationally registered trademarks and service marks are able to register their marks as domain names on a first-come-first-served basis in a new TLD before that new domain is made available to the general public. Under the IPC proposal, however, only owners of national trademark registrations are eligible to seek registration of a domain name during the Sunrise Period, provided that the national registration for that mark was issued at least one (1) year prior to the date on which the mark owner applies to register the mark.
Because NeuLevel, according to its own code of conduct, is a neutral third party service provider, it is concerned about favoring the rights of one class of registrants over any other class of registrants, and thus has never advocated the adoption of the Sunrise. In addition, I have participated in several of the working groups of ICANN's Domain Name Support Organization that were tasked at evaluating proposals on intellectual property protections in the new TLDs, including the Sunrise. The Sunrise has never received consensus support in the Internet Community, or even among intellectual property owners. In fact, the United States Small Business Administration (''SBA'') issued a statement on April 14, 2000, which stated that Sunrise contained ''foundational flaws'' that prevent (ed) the office from endorsing it's adoption. I ask that this letter be made part of the record.The Sunrise's lack of support from all intellectual property owners and the Internet community, coupled with the SBA's statement and NeuLevel's concern about favoring the rights of one class of registrants over any other class of registrants lead NeuLevel to adopt the SIPN service, which many in the intellectual property community have called a workable alternative to the Sunrise. I ask that a more detailed explanation of NeuLevel's position on Sunrise be made a part of the record.
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I thank the subcommittee for giving me the opportunity to testify, and to summarize the numerous intellectual property protections incorporated in the .biz TLD.
ATTACHMENT I
START-UP INTELLECTUAL PROPERTY NOTIFICATION (SIPN) SERVICES PROCESS
For a period of approximately thirty (30) to forty-five (45) days prior to the receipt of domain name application forms (''Claim Period''), Trademark owners (''Claimants'') will be afforded the opportunity to fill out and submit ''Trademark Claim Forms'' which will set out the following information:
The .BIZ domain name in which the Trademark owner is claiming intellectual property rights. This domain name must be identical to the alphanumeric string contained in the mark;
Exact alphanumeric string contained in the trademark in which rights are claimed;
Trademark holder entity contact information;
Trademark holder representative's contact information and relationship to trademark holder entity (i.e., General Counsel, President, CEO, etc.);
Description of goods and services for which the exact Trademark is being used;
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Date of first use of the Trademark in commerce; and
If the mark is registered with any national Trademark office, registration number, and country where registration was obtained.
There shall be no restriction on the number of intellectual property owners that may file Trademark Claim Forms for a given domain name. Trademark owners may not submit a Trademark Claim Form after the Claim Period.
As a neutral third party providing these services, NeuLevel will not, however:
Verify whether a claim corresponds with an actual Trademark.Provide legal oversight or adjudication.Guarantee or represent that a Trademark owner who enrolls in the SIPN will receive the actual domain name.
Claimants will submit a Trademark Claim Form for each separate Trademark for which they are claiming intellectual property rights. Submission of a Trademark Claim Form does not create any special rights with respect to registering a particular domain name. Any Claimant wishing to register a domain name must also submit a separate domain name application. The submission of a Trademark Claim Form does not guarantee that the Claimant will receive the actual domain name.
For each match between a domain name application (''Application'') and a Trademark Claim Form, NeuLevel will notify the applicant and the ICANN-Accredited Registrar through which the applicant filed an Application, that a third party, or parties, has submitted a claim for the exact string requested. The notification to the applicant will include, among other things, the information provided by Claimant in the Trademark Claim Form, instructions on how to proceed with the registration process, notification that the domain name will automatically placed ''On Hold'' (as described below) if the name is registered. This notification is provided to all Applicants that apply for the same string in the Application and does not guarantee ultimate registration by that applicant of the domain name.
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The e-mail notification to the applicant will provide a link to a secure site where the applicant will go to confirm whether it wishes to proceed with the domain name application. The applicant will have the option to proceed with the application or cancel. If the applicant does not respond to the e-mail notification from NeuLevel, or elects to cancel the Application, the Application will not be processed, thus, making the Applicant ineligible to register the actual domain name. If the Applicant affirmatively elects to continue the application process after being notified of the Claimant(s) alleged trademark rights in the desired domain name, NeuLevel will provide confirmation to the Applicant confirming the decision to pursue the domain name.
All of these domain names along with all of the domain names for which there was no match in the Trademark Claim Form database will be compiled by NeuLevel into one database batch. Names for registration will be randomly selected from this batch to be processed for registration. The registration in the live registry of a domain name that is the subject of a complete Trademark Claims Form will not be immediate, but rather the subject domain name registration will automatically enter a thirty (30) day Hold Period during which all Claimants will be advised by e-mail of the identity of the person or entity that has registered the exact Trademark claimed. The notification e-mail will include the full WHOIS information of the registrant. In addition, the e-mail will provide a hyperlink to a unique Start-Up Uniform Dispute Resolution Process (''SUDRP'') described below.
During this Hold Period, the domain name will not be activated in the DNS. Should a notified party file a contest to the registration in the formal SUDRP process, the domain name would be ''locked'' until the dispute is decided. During such ''locked'' period, in accordance with the current Uniform Dispute Resolution Policy, modification by the registrant of the domain name information (i.e. owner, contact information, etc.) will not be permitted, however, the domain name will resolve to the DNS after the Hold Period set forth above.
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ATTACHMENT II
THE SUNRISE PROPOSAL
As further explanation, NeuLevel believes that the adoption of the Sunrise Proposal would unduly favor registered trademark owners who have obtained trademark registrations at least one year prior to the commencement of the Sunrise Period over: (1) trademark owners who have had a registered trademark for less than a year, (2) trademark owners who were in the trademark application process, and (3) common law trademark owners. In addition, in other countries, a trademark owner could register trademarks that would be considered generic in the United States and therefore, unregistrable. For example, the mark ''Computer'' is registrable in one of the Asian-Pacific nations and would not be registrable with the United States. Thus, a Sunrise Proposal would allow these foreign trademark owners to register such generic English marks as domain name during the Sunrise Period, thereby preventing other legitimate businesses from registering the same marks as domain names.
NeuLevel understands the Intellectual Property Constituency's position on the Sunrise Proposal and also that the Sunrise has been adopted by several of the other new TLDs. However, NeuLevel does not believe that the Sunrise Proposal is the best method or the only mechanism that will enable intellectual property owners to protect their rights. To illustrate NeuLevel's concerns about the Sunrise, NeuLevel need only point out that it will be ineligible to participate in any Sunrise Procedures adopted by any of the new TLDs. Although it has applied for trademark protection in the United States for the mark ''NeuLevel,'' the mark is in currently in the application process, and has been since October 2000. It is not anticipated that the PTO will issue a registration for the NeuLevel mark until 2002 at the earliest. Therefore, although, NeuLevel does have valid common law intellectual property rights in the ''NeuLevel'' trademark, because it does not have a valid ''national registration'' yet, it will be unable to participate in the Sunrise. Thus, it is possible that another entity having a trademark registration anywhere in the world for the NeuLevel mark, even for wholly unrelated goods and services, could obtain a domain name containing the ''NeuLevel'' mark without us even having an equal chance to get the domain name.
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NeuLevel does not advocate, nor has it ever advocated, that it should automatically be given all domain names containing the mark ''NeuLevel,'' but rather that it should have an equal chance with all of the other trademark owners, registered or common law, to obtain domain names containing the NeuLevel mark. The current Sunrise Proposal, as adopted by several of the new TLDs, would not allow NeuLevel or any other trademark owner that is the application process or that has common law rights to participate.
In contrast, NeuLevel's SIPN service would allow all trademark owners to participate. In fact, we believe that this was one of the reasons that NeuLevel was selected to operate the .biz TLD. Through the SIPN service, coupled with its anti-speculation clause and extensive WHOIS service, NeuLevel provides an alternative approach to the Sunrise Proposal, while at the same time also provides significant intellectual property protections to all intellectual property owners, whether they have a nationally registered trademark or common law rights.
Mr. COBLE. Thank you, Mr. Neuman.
Mr. Metalitz, we will get to you once we go vote. We will stand in recess, and we will return imminently. Thank you.
Thank you, Mr. Neuman.
[Recess.]
Mr. COBLE. Folks, I again apologize to you all for this, but oftentimes this is the nature of the beast so we may be going back and forth all day. Thank you all for your testimony.
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Mr. Metalitz, looking forward to hearing from you.
STATEMENT OF STEVEN J. METALITZ, VICE PRESIDENT AND GENERAL COUNSEL, INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE
Mr. METALITZ. Thank you very much, Mr. Chairman, Members of the Subcommittee. I am pleased to be here to address the concerns of copyright and trademark owners. One view I know we can present right away is that we very much agree with you, Mr. Chairman. We are glad the Subcommittee is back in business this year.
Mr. Chairman, the intellectual property owners face two major problems in the online environment. One is cybersquatting and one is piracy. When someone registers a domain name that is the same as my trademark or service mark or nearly the same, and either holds it for ransom or uses it to dilute my mark or tarnish my mark, that is cybersquatting. It is a trademark problem.
The second problem is piracy: use of an Internet site, whatever its name, to promote or distribute counterfeit and unauthorized products and services. And this especially hurts copyright owners, since nearly all copyrighted products like music, movies, software, video games, can be distributed online without authorization or compensation, and this is happening today in huge volumes. There is also a serious piracy problem of unauthorized public performances of copyrighted works online.
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Both piracy and cybersquatting pose real threats to intellectual property rights and to the healthy development of electronic commerce, but there are two key features of the domain name system, as we have heard this morning, that help us combat these problems and also help us use the legal tools that this Subcommittee and the Congress has provided for us. One of those features is ''Whois'' and the other feature is the Uniform Dispute Resolution Policy, UDRP.
As you know, ''Whois'' is the label applied to free, unrestricted public access to current, accurate contact data on domain name registrants. This has been a feature of the domain name system almost since its inception. It brings essential accountability and transparency to the Internet, and it benefits consumers, law enforcement, all Internet users. It especially helps copyrighted trademark owners, because it helps us find the culprits in cybersquatting and piracy cases. As a practical matter, we could not enforce our rights online without ''Whois''.
The UDRP, by contrast, is a recent experiment, but it is one that is working. It was launched 15 months ago, and it has proven to be an effective, efficient way to rid the generic top level domains of the most clear-cut cases of cybersquatting, without burdening the courts. It is not perfect, it is no panacea for trademark owners, but it has proven its worth.
Copyright and trademark owners participated actively in the ICANN process for selecting new TLDs. We had two main goals. First, we wanted to ensure that the new domains operate under the ground rules that preserve and strengthen the proven mechanisms that I have already talked about, ''Whois'' and the UDRP. The second goal was prevention. The new registries need to act to prevent their domains from becoming domains for cybersquatting and piracy in the first place.
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Two examples of such preventive measures you have already heard about. One is a sunrise mechanism that would allow trademark owners to preemptively register domain names that are identical to their established marks. And, second, the adoption of clear, enforceable charters that govern who may register a domain name in a new domain and for what purpose.
What has the process produced? There has been constructive dialogue. There has been progress. The new registries have made some policy changes that lessen the risk that they will be infested with intellectual property problems as soon as they roll out. But the report card is mixed, and in some cases it is just too early to give a grade.
Now, the .pro registry we think has done a good job of incorporating the needed safeguards. They have shown how it can be done. We also think that .info has done a good job, with one significant caveat. We are not convinced the world really needs another .com clone, which is what .info is.
Currently, our main concerns center on .biz and .name. .biz is supposed to be limited to legitimate businesses. That is how it is supposed to be different from .com. But the .biz charter treats sites that are engaged in copyright piracy or trademark counterfeiting as bona fide business uses. Even if we identify these sites on .biz, there is no way to kick them off, because what they are doing, which is stealing our intellectual property, is not a violation of the .biz charter. .biz also declined to provide a sunrise mechanism. They have an alternative procedure which Mr. Neuman has described. It is potentially quite helpful, but it is not really a preventive measure. The burden is still shifted to trademark owners to police the new domain for cybersquatters.
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As for .name, its operating plan remains in flux. There is a lot of key issues that are unresolved, about ''Whois'', charter enforcement and dispute prevention. It is a moving target that really hasn't come to rest.
Rather than place these applications on a fast track to approval, ICANN should allow enough time for these uncertainties to be satisfactorily resolved. These are not technical quibbles. They go to the heart of the question of whether these new domains will promote legitimate electronic commerce or become havens for cybersquatting and piracy. And I believe the oversight of this Subcommittee is very important for making sure that the new domains follow the right path.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Metalitz follows:]
PREPARED STATEMENT OF STEVEN J. METALITZ, VICE PRESIDENT AND GENERAL COUNSEL, INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE
Mr. Chairman, and members of the Subcommittee:
Thank you for this opportunity to present the perspectives of intellectual property owners on recent developments in the Domain Name System (DNS), particularly the impending introduction of new Top Level Domains (TLDs).
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I appear this morning in two capacities. First, I am here as counsel to the Copyright Coalition on Domain Names (CCDN). Since 1999, this coalition has brought together the leading organizations representing copyright owners, whose common goal is to preserve and enhance the critical role of the domain name registration system in combating the scourge of online copyright piracy and promoting legitimate electronic commerce in works of authorship.(see footnote 6)
I also serve as president of the Intellectual Property Constituency (IPC), the international group organized under the auspices of the Internet Corporation for Assigned Names and Numbers (ICANN) and its Domain Names Supporting Organization, to advise ICANN on intellectual property issues generally, including trademark as well as copyright matters. While, due to time constraints, this testimony has not been formally approved by the IPC, it does reflect the public policy positions that group has taken.(see footnote 7)
INTELLECTUAL PROPERTY AND THE DNS: WHAT IS AT STAKE
Members of this Subcommittee know very well how important the copyright industries are to the U.S. economy. The most recent study released by the International Intellectual Property Alliance shows that in 1999, industries that depend on copyright protection—the so-called ''core copyright industries''—accounted for nearly 5% of the U.S. Gross Domestic Product. These industries provided jobs for some 4.3 million Americans, and generated nearly $80 billion in foreign sales in 1999, far ahead of any other industrial sector. By every measure—exports, employment, and total value-added to the U.S. economy—the copyright industries are growing two to three times faster than other segments of our economy. The world's seemingly insatiable appetite for American books, music, recordings, films, videos, software and videogames shows no sign of abating.
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This subcommittee is also acutely aware of the threat that copyright piracy poses to this remarkable U.S. success story. Increasingly, the venue for that piracy is online. At literally hundreds of thousands of sites in cyberspace, technologically sophisticated pirates are stealing intellectual property created by Americans. The damage inflicted by these cyberpirates, in the form of unauthorized performances, reproductions and distributions of copyrighted music, recordings, audio-visual materials, software, videogames, and text products, threatens to dwarf the estimated $20–22 billion in piracy losses suffered by U.S. copyright owners in the off-line world each year.
The online environment offers both extraordinary opportunities and serious problems for trademark owners as well. The chief problem, of course, is cybersquatting: registration and trafficking in Internet domain names with the bad-faith intent to benefit from another's trademark. This threat could be exacerbated by the introduction of new TLDs, if they become venues for cybersquatting. In that scenario, trademark owners would incur increased costs for policing and litigation, costs which must be passed along to consumers. Our economy will not be able to reap the full benefits of electronic commerce without eliminating cybersquatting where it now exists, and preventing it from gaining a foothold in other parts of the DNS.
LEGAL TOOLS AND THE DNS: WHOIS AND UDRP
We are grateful for the leadership of this subcommittee in providing copyright and trademark owners with improved legal tools to combat cyberpiracy and cybersquatting and to promote legitimate e-commerce. These include, on the copyright side, the No Electronic Theft (NET) Act in 1997, the Digital Millennium Copyright Act (DMCA) in 1998, and the Digital Theft Deterrence and Copyright Damages Improvement Act in 1999. Of course, for trademark owners, the Anti-Cybersquatting Consumer Protection Act of 1999 has proven to be an invaluable tool. These new laws have been of immense practical value in the effort to detect, prosecute, and deter online copyright piracy and cybersquatting. What is sometimes overlooked is the important role played by the domain name registration system in achieving this progress.
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As witnesses from CCDN, INTA and other organizations told this subcommittee in 1999, a key tool that intellectual property owners use to combat online piracy and cybersquatting is called ''Whois.'' This feature of the domain name system makes available the contact data on those who register domain names. Every pirate site has an address on the Internet; and through Whois and similar databases, virtually every Internet address can be linked to contact information about the party who registered the domain name corresponding to the site; about the party who hosts the site; or the party who provides connectivity to it.
Copyright owners use this critical information in a number of ways. Sometimes we approach the site operator directly, with a demand that piratical activity cease. In the case of unauthorized public performances and other uses of musical compositions, the major organizations representing copyright owners generally contact the site operator and offer him a license to cover those performances or uses, which provides a means for the operator to avoid further liability. Sometimes Whois data is used primarily to correlate the activity at one pirate site with another that may be registered by the same or a related entity. This information is compiled for later use in civil or criminal enforcement proceedings, including settlement discussions. But perhaps the most important use of Whois data is to enable the operation of a key element of the DMCA, the ''notice and takedown'' procedure provided by 17 USC 512.
As you know, under notice and takedown, the copyright owner (or its representative) notifies an Internet Service Provider (ISP) of infringing activity taking place on a site which the ISP hosts or to which it provides connectivity. The DMCA gives the ISP a strong incentive, in the form of sharply reduced exposure to legal remedies, if it expeditiously ''takes down'' or cuts off access to the site in question. Over the past two years, notice and takedown, whether carried out strictly within the steps set out in the DMCA or through more informal channels, has worked. In the year 2000 alone, the recording, software and audiovisual industries successfully used notice and takedown against more than 11,000 pirate sites. Through this mechanism, copyright owners and responsible ISPs have cooperated to combat online piracy. This would not have been possible without Whois. Notice and take down cannot function unless copyright owners can quickly and reliably determine the identity of the ISP to which they should direct their notice. That's where Whois and related DNS directory services come in. For a particular second level domain or other site(see footnote 8), Whois allows copyright owners quickly and reliably to identify the ISP to whom a DMCA notification should be directed in order to start the notice and takedown procedure. Without Whois, it would be much more complicated, expensive and slow for copyright owners to find out who is the proper recipient of a DMCA notification.
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Whois data is also essential to trademark enforcement efforts. Not only does it enable trademark owners to determine the identity of cybersquatters; it also helps to establish whether a particular cybersquatter is engaged in a pattern of behavior, such as the wholesale warehousing of domain names that are confusingly similar to trademarks. Demonstrating such a pattern is a critical element in proving bad faith, both under the ACPA, and in the non-judicial procedure established by ICANN for revoking bad-faith domain name registrations: the Uniform Dispute Resolution Policy (UDRP).
While the UDRP is not the focus of this hearing, I believe a short summary of its status is in order. When the subcommittee last convened to hear testimony regarding the domain name system, the idea of instituting a global, non-judicial procedure to address the epidemic problem of cybersquatting was, quite frankly, a proposal for an experiment. Since then, the experiment has been put into practice. The UDRP was developed in negotiations conducted by ICANN, in which the IPC was an active participant, and was rolled out in December 1999. As of March 15, 2001 the procedure has been invoked more than 3200 times, with regard to nearly 5800 domain names. In its first fifteen months, this experiment has been a remarkable success. It has provided a relatively fast and relatively low-cost mechanism for ridding the existing global TLDs—.com, .net and .org—of the most flagrant cybersquatters. The UDRP certainly is not perfect, nor are its decisionmakers infallible. It is definitely not a panacea for trademark owners: indeed, the burden of persuasion which the trademark owner must shoulder—proving ''bad faith''—is quite heavy. But within the limited sphere in which it was intended to operate—to handle clear-cut cases of cybersquatting without burdening national court systems, including the U.S. courts—the UDRP has worked well. Certainly it has worked well enough to justify extending this model for domain name dispute resolution into the other parts of the DNS. In the context of the new TLDs, the UDRP also provides the template for specialized dispute resolution procedures that may apply during the start-up or ''land rush'' period, and for proposed non-judicial mechanisms to enforce the charter restrictions on who may register in a given TLD and for what purpose.
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THE IMPORTANCE OF UNRESTRICTED PUBLIC ACCESS TO WHOIS
Ever since the advent of the DNS, Whois data has been available in real time to any member of the public without fee and without substantial limitations on its legal use. Among the chief goals of copyright and trademark owners are to preserve real-time, unrestricted public access to Whois data over the broad range of the Internet where it now exists; to extend such access to other parts of the Internet where it is currently lacking; and to increase the reliability and usefulness of Whois access, both by improving the quality and accessibility of Whois data and by enhancing its searchability. Let me emphasize three general points about why unrestricted public access to Whois is so vital.
First, in stressing how much copyright and trademark owners need Whois data, I certainly don't want to give the impression that Whois is important only or mainly for enforcement of intellectual property rights. Nothing could be further from the truth. The value of unrestricted public access to Whois extends far beyond the intellectual property arena. For instance, network operations and security personnel need Whois, to identify systems problems and track down hackers. Consumers need WHOIS to check out whom they are dealing with online and where to seek redress for problems. Parents need WHOIS to find out who is responsible for sites their children are visiting, and to restrict children's access to inappropriate material. Law enforcement authorities need WHOIS, to investigate illegal activities taking place online, from child pornography to consumer fraud to spreading viruses. In fact, it is no exaggeration to say that all Internet users need WHOIS to provide essential transparency and accountability on the Internet. If the Internet is to thrive as a medium for legitimate commerce and for ubiquitous communication, we all have a stake in preserving and enhancing unrestricted public access to Whois.
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My second general point is that this goal does not require a radical restructuring of the Internet, but rather the continuation of policies that have been central to the domain name system since its inception, and that have served the Internet well in the course of the spectacular growth of online activity over the past decade. For the most part, with some significant exceptions, free, real-time unrestricted access to Whois data is the status quo. Those who call for degrading or dismantling this capability are calling for a radical departure from well-established policies that have benefited all Internet users. We should think long and hard before proceeding down that path.
Finally, I should comment briefly on the complex topic of privacy. While unrestricted public access to domain name registrant contact data delivers substantial benefits to society, we recognize that this access can be abused. Copyright and trademark owners strongly oppose such abuses, and we support responsible steps that can be taken to curb them, whether by technological, contractual, or legislative means. But such abuses must be viewed in a broader context. The registry database for .com, .net and .org processes 30 million Whois queries each day—over one billion per year. The percentage of these that raise any privacy concerns whatsoever is vanishingly small.
There are many ways for individuals to establish a robust presence on the Internet without even registering a domain name themselves. Those individuals who choose to do so by registering a domain name should not be exempt from the mechanisms (like Whois) that serve to bring a minimum level of accountability and transparency to online activities that may impinge on the rights of others. Few people, and virtually no laws, treat privacy as an absolute that trumps every other social value. Unrestricted public access to Whois data—the long-established status quo in the global TLDs—is fully consistent with a balanced approach to privacy, the approach that underpins privacy legislation both in the U.S. and abroad.
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NEW TLDS: THE CONTEXT
It is helpful to remember that the online universe, like Caesar's Gaul, is divided into three parts.(see footnote 9) The first part is the so-called global (or as they used to be called, generic) Top Level Domains, or gTLDs: primarily, .com, .net and .org. The second part is the country code Top Level Domains, or ccTLDs: the 240 or so two-character domains that are associated in some way with a political jurisdiction, be it a big country like China (.cn), France (.fr), or Germany (.de), or a tiny territory like Tuvalu (.tv), the Cocos Islands (.cc), or Niue (.nu). The third part is just coming into existence: the seven new Top Level Domains which ICANN authorized last November, and as to which it is currently negotiating agreements with entities who will operate them. Let me begin with the new TLDs, which are the focus of this hearing, before commenting on how intellectual property protection is faring in the other two parts of the DNS.
NEW TLDS : THE INTELLECTUAL PROPERTY CRITERIA
ICANN is currently embroiled in the process of bringing to fruition the first significant expansion of the Domain Name System in many years: the introduction of seven new Top Level Domains. ICANN views this as a ''proof of concept'' exercise. Once these seven new TLDs are operational, an evaluation period will commence. Depending on the outcome of these evaluations, many more new TLDs could be rolled out in the near future.
Members of the IPC have been active participants throughout the course of ICANN consideration of the new TLD issue. There is no question that many in the intellectual property community, and in the business community generally, were skeptical about the need for any new Top Level Domains, particularly of the open, unrestricted variety as exemplified by the three main existing gTLDs (.com, .net and .org). There are also strong arguments for a deliberate and controlled roll-out of any new TLDs, for technical reasons as well as in recognition of ICANN's limited resources for evaluation and oversight. But CCDN and most other intellectual property owner groups came to the conclusion that the alleged need for new TLDs, as well as the precise number that should be rolled out, were issues on which reasonable people might well differ. The most important questions, from our point of view, were the ground rules under which any new TLDs would operate, and the ability of ICANN to monitor and enforce any obligations that the new registries took on. These ground rules were particularly important for any new registries that were ''restricted'' or ''chartered,'' meaning that, unlike in .com, registrations in them would be allowed only by certain defined categories of entities, or only for certain specified purposes. And specific procedures needed to be adopted for the ''land rush'' period of initial registration in the new TLDs; otherwise, the most attractive real estate in the new name space could be grabbed by cybersquatters who would hold it for speculation or for ransom by legitimate trademark owners.
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Over the course of several months, the IPC developed a short list of minimum safeguards for intellectual property protection that should be applied to all new TLD applications. This document was publicly posted as early as August 2000, and was made available to all potential applicants for new TLD registries. We were also able to garner endorsements for this list from two other official ICANN constituencies, representing business and commercial interests, and Internet Service Providers. I attach the full safeguards document to this testimony, but set forth here a summary of its key points.
1. Registration Requirements and Procedures
All registrants in new TLDs should be required to:
pre-pay all registration fees
provide accurate contact information and keep it current
fully complete electronic registration forms
certify that statements made in the registration application are true.
Grounds for revocation should be:
the knowing submission of false contact data
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the use of a domain for illegal purposes.
Chartered TLDs need special rules to cover:
who is permitted to register second-level domain names
what activities are and are not appropriate
efficient enforcement.
2. UDRP
The UDRP has shown its worth in the steady removal of bad faith domain registrations. It is essential that:
the UDRP is expanded to all new TLDs
violation of charter should be a demonstration of bad faith.
3. Whois
All applications for new TLDs should facilitate searchable public data on at least:
second-level domain name and its status
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registrant's and registrars name and postal address
administrative/technical contacts' name, address, e-mail, telephone and fax
original registration date, expiration date, update date
IP addresses, names of primary and secondary server
4. Start up phase
The intentional registration of trademarks by parties other than their owners leads to confusion at best and fraud at worst. In this regard, it is critical to have a procedure for:
the pre-registration of trademarks of 1 year or more standing. (This is commonly referred to as a ''sunrise'' procedure.)
NEW TLDS: THE PROCESS
There have been many criticisms of the process ICANN used to solicit and consider applications for new TLDs. Our verdict on this process so far is mixed. I emphasize ''so far'' because the new TLD process is ongoing. Negotiations between ICANN and four of the new TLD applicants—for .biz, .info, .pro, and .name—have not been concluded; negotiations with the other three applicants that received a ''green light'' last November—.coop, .museum, and .aero—have barely begun. As of today, a number of critical issues about the operation of the new TLDs remain unresolved.(see footnote 10)
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With these caveats, CCDN and IPC believe that some positive aspects of the new TLD approval process so far should be noted. First, ICANN did include among the criteria that applicants were required to address the protection of intellectual property rights, including issues of Whois accessibility and data quality, and mechanisms for dispute prevention and resolution. Second, ICANN ran a transparent process which accommodated broad public participation. Virtually all application material, as well as the staff evaluations of the applications, were posted on the Internet, and numerous channels for public comment and participation, both online and in person, were provided. Third, and perhaps most importantly, ICANN clearly communicated to applicants the presumption that the existing obligations undertaken by the gTLD registries and registrars, including full public accessibility of Whois data and participation in the UDRP, would carry forward into the new TLD environment. In other words, any application that sought to restrict the full public accessibility of Whois data, or to narrow the applicability of the UDRP, would have to justify the departure from the gTLD status quo.
The short deadlines involved in the process of evaluating and deciding on the applications have provoked a great deal of criticism. There is certainly some merit to these complaints: the deadlines in many cases were extremely short. But ICANN was under considerable pressure from some quarters to roll out many more new TLDs even faster. CCDN's experience, and that of our colleagues in the IPC, was that it was possible to review and analyze the relevant materials, to engage the applicants and the ICANN staff, and to participate fully and actively in the evaluation process, in the time frames allotted. This required an enormous contribution of person power, most of it volunteer, and many hundreds of hours of research and negotiation. (For example, during the three days preceding the ICANN Board vote on new TLDs in Los Angeles last November, IPC teams held substantive meetings with the majority of the 44 active applicants, many of which resulted in significant changes to the applications themselves.) Indeed, this regimen has persisted in the current phase of negotiations between ICANN and the applicants; since the November vote by the ICANN Board, IPC representatives have devoted considerable time and resources to extensive contacts, including several face-to-face meetings, with all the successful applicants, and our job is not done. We anticipate a great deal more work in reviewing and commenting on the texts of the actual agreements between ICANN and the registries as they are made public.
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On the negative side, there is very little indication that intellectual property concerns played any role in any of the decisions made by the ICANN Board regarding new TLDs. The issue went virtually unmentioned throughout the marathon public meeting of the Board at which the seven applicants received the ''green light'' for further negotiations. Perhaps the best demonstration of how the ICANN Board approached this issue may be gleaned from the following fact: of the five entities competing to run a ''.biz'' registry, the IPC ultimately concluded, after the negotiations in Los Angeles, that four applications were at least minimally acceptable. We advised the Board of this fact. Without any public discussion of the IPC concerns, the Board chose the fifth application, the only one that the IPC felt did not present a minimally acceptable plan for preventing intellectual property disputes through the use of a so-called ''sunrise'' registration mechanism for trademark owners.
NEW TLDS: THE PROSPECTS
Turning from process to substance, what is the outlook for copyright and trademark owners in the new TLDs?
With regard to Whois, the prospects seem fairly good overall. In general, most of the new registries appear willing to conform to the minimum standards for unrestricted public access to Whois, and for measures to improve data quality, that apply now to the existing gTLDs. In addition, these new registries even offer the prospect of some practical improvement in Whois access. For instance, the .biz, .info and .pro applications all propose to depart from the ''thin registry'' Whois model now operating in /com/net/org, in favor of a so-called ''fat'' or ''thick'' registry, in which the contact data for all registrants (regardless of the registrar that took the registration) would be centralized in a single, registry-wide database.(see footnote 11) This will be a significant improvement over the situation now faced among the gTLDs. Just last week, we learned that the fourth new-TLD-to-be, .name, is planning to switch its proposal from a ''thin'' to a ''fat'' registry model.
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Some of the new TLD applicants, notably .pro and .info, also offered to provide greater searchability for Whois data (for instance, the ability to search by data elements other than domain name). However, none of the applications specifies when this enhanced search capability will be made available, and the applicants have rather assiduously avoided any firm commitment in this regard. As discussed in more detail below, we believe (with apparent agreement from the ICANN staff) that robust searchability is already an obligation for all gTLD registries; accordingly, in our view, all new TLDs should provide this capability immediately upon launch, not at some unspecified date in the future.
However, Whois is not the only issue with which trademark and copyright owners are concerned in the new TLD environment. Our most fundamental goal is to prevent, to the extent possible, any of the new TLDs from becoming havens for piracy and cybersquatting. Certainly the transparency and accountability provided by publicly accessible Whois is a critical tool for advancing that goal: it increases the chances that any pirate detected to be operating in the new TLD could be quickly identified and efficiently taken down or otherwise pursued. But on the theory that an ounce of deterrence is worth a pound of enforcement, intellectual property owners have focused much of their attention on what steps will be taken by the so-called ''chartered'' or ''restricted'' new TLDs to keep pirates from registering their domains there in the first place, and to quickly expel them if they do. Similarly, trademark owners are scrutinizing the start-up plans of all the new TLDs, to evaluate the safeguards which they propose to discourage cybersquatting, as well as the mechanisms available to deal with this problem if it does occur.
THE FIRST FOUR NEW TLDS
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I turn briefly at this point to the four new TLDs that have made the most progress toward ICANN approval.(see footnote 12) There is not much that needs to be said about two of them.
Dot info, which will be run by a consortium of existing ICANN registrars, is essentially a clone of the existing .com: there is no attempt to impose any restrictions on who may register there and for what purpose. While one might certainly question whether what the world needs is another .com, the .info proposal incorporates, to at least an acceptable extent, the safeguards that the intellectual property community is looking for in all the new TLDs. Its Whois service will be at least as useful as what is available today in .com. The .info plan includes a full-fledged ''sunrise'' mechanism under which the owners of all trademarks registered prior to October 2, 2000 have the opportunity to pre-register the domain name corresponding exactly to the registered mark. All other cases of cybersquatting (e.g., bad faith registration and use of a domain name that is not identical to a registered mark, but confusingly similar) will be fully subject to the UDRP.
At the other end of the spectrum, the .pro proposal offers a model of how a true ''chartered'' or ''restricted'' Top Level Domain might be set up. Its operators seem to have a well-prepared plan for restricting registration to accredited professionals, such as lawyers, doctors and accountants, and for policing that restriction. The operators of the registry will screen all applications themselves, and have also provided a mechanism for third parties to challenge those who may not be entitled to register. Vigorous implementation of these rules should help to minimize the risk of piracy and cybersquatting in sites registered under .pro. A functional, centralized Whois service will be provided, with enhanced searchability at some point in the future. A ''sunrise'' mechanism is in place to allow trademark owners to pre-empt cybersquatters, and the UDRP will be available for other cases of bad faith registration and use of a .pro registration.
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The most problematic applications from the standpoint of intellectual property owners appear to be those for .biz and .name. In a sense, these two new TLDs portray themselves as mirror images of each other: .biz is supposedly devoted to legitimate business activities, while .name is intended for use by individuals, primarily for non-commercial purposes. Although they have not consistently done so, both now describe themselves as ''chartered'' Top Level Domains—although it might be more accurate to modify that label by calling them ''ostensibly chartered''.
At the time that the ICANN Board approved their applications for further negotiation, and for months thereafter, neither .biz nor .name put forward any serious proposal, either for charter definition—who may register in the new TLD, and for what purpose—or for charter enforcement—how to handle and act on evidence that a registration is being used for purposes inconsistent with the charter. The .biz charter definition was first made public on March 6; as of March 19, no specific enforcement proposal for it has been publicly posted. With regard to .name, IPC members were unable to obtain any written proposal regarding charter definition and enforcement until March 11, and as of March 19 it still has not been posted for public review. Thus, as of this writing it is not possible to say whether either of these proposals includes sufficient safeguards to reduce the likelihood that these new TLDs will become havens for cyberpiracy or venues for widespread cybersquatting.
Dot Biz
The proposed .biz charter definition contains a definition of ''bona fide business or commercial use,'' and requires that registrations in .biz ''be used or intended to be used primarily'' for such purposes. The proposal also spells out that registration ''solely for the purposes of selling, trading or leasing the domain name'' is not allowed. However, the .biz operators—the joint venture Neulevel—rejected a detailed proposal from the IPC to forbid registration predominantly for the purpose of carrying out cyberpiracy through use of the domain name or a site corresponding to it. It is difficult to understand why Neulevel insists upon treating blatant copyright piracy or trademark counterfeiting—as well as other forms of consumer fraud—as ''bona fide business or commercial use,'' even to the extent of refusing to provide any mechanism to revoke the registration of someone who uses the .biz imprimatur for such an illegal purpose.
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Although, as noted above, the specific enforcement mechanism for enforcement of the charter ''restrictions'' in .biz has not yet been unveiled, we understand that it will involve an administrative proceeding in which a third party—not .biz—will determine whether a restriction has been violated. Neulevel appears ready to let an adjudicator determine whether or not a site is being ''used primarily for bona fide business or commercial purposes,'' and whether or not the registration was made ''solely for the purposes of'' speculation in the domain name. We know no reason why the same mechanism could not be used to determine whether the registration is being used predominantly for purposes of copyright piracy or trademark counterfeiting, and, if so, to revoke the registration.
Neulevel also refused to incorporate in its start-up plans a ''sunrise'' mechanism under which trademark owners could prevent cybersquatters from registering .biz names identical to their marks. Instead, after extensive negotiation, Neulevel agreed to an alternative mechanism, in which trademark owners could, through a pre-registration procedure, prevent an unauthorized registration of a domain name identical to their mark from ''going live'' for a 30-day period. While this may have some value in deterring cybersquatters, it is not likely to be as effective or efficient a means of prevention as a true ''sunrise'' procedure. Indeed, Neulevel's procedure is really not a preventive measure at all, but simply a means of facilitating use of an alternative dispute resolution procedure to remedy an act of cybersquatting after it has occurred. While intellectual property owners may be prepared to live with this for one TLD, we believe that it must not be viewed as a precedent that trademark owners must shoulder the full expense and effort of curbing cybersquatting in new TLDs.
Dot Name
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If anything, our concerns are even more pervasive with respect to .name. The IPC strongly recommended to the ICANN Board that the application for .name tendered by Global Name Resources (GNR) not be approved for further negotiation, and even a brief review of the application shows why. Three examples may suffice to illustrate the basis for our concerns.
First, contrary to the impression some may have gained of the registration criteria for .name, the GNR application made it quite clear that anyone could register virtually any domain name for any purpose in .name. An applicant need not register his or her own name; he or she could register any name (or unlimited number of names) desired, or even any set of letters not constituting a name, so long as the registration met a certain xxx.yyy.name format. Thus, chairman.coble.name, judiciary.committee.name, general.motors.name, adobe.photoshop.name, or columbia.pictures.name, would all be equally available to any registrant, no matter whether he or she had any connection to the person, institution, or product named.
Second, while the application purported to limit .name registrations to ''non-commercial'' uses, that term was essentially undefined. In any event, it is certainly plausible that a use that GNR would consider ''non-commercial'' would also be a piratical use that inflicts severe damage on copyright or trademark owners. Thus, the registrant at columbia.pictures.name could use a site to which that name resolves to distribute unauthorized copies (via download or streaming) of Columbia's movies, so long as no money changed hands. Of course, Congress, led by this subcommittee, recognized several years ago that purportedly non-commercial piracy sites could inflict serious commercial harm on copyright owners. It passed the NET Act in 1997 to plug a loophole in our criminal infringement laws that suggested otherwise.(see footnote 13)
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Finally, the GNR application was profoundly unclear—indeed, self-contradictory—about what Whois information would be made available. Some people have argued that the Whois data public accessibility obligations regarding Top Level Domains intended for personal use should be relaxed on privacy grounds. This treatment would have been wholly unjustified for a .name registry as described in the GNR application, since the registry would be open to virtually anyone to register for virtually any ''non-commercial'' purpose. The need for accountability and transparency would be heightened, not diminished, in such an environment.
Sometime over the past six weeks or so, the .name proposal has apparently been transformed dramatically in a number of ways. Although very little information about these changes has yet been posted on the ICANN web site, it appears that registrations in .name will now be allowed only for the registrant's actual name, or for the name of a fictional character in which the registrant holds a trademark or service mark. A dispute resolution procedure will be provided to challenge .name registrations which a third party believes do not meet these criteria. There will also be a mechanism for defensive registration of trademarks (or other words) that are not believed to constitute anyone's personal name, although such registrations will be extremely expensive.
Finally, GNR has apparently revamped the entire structure of the proposed .name registry. Its application proposed a ''thin registry'' structure, in which most Whois data would have been obtainable only from the registrar who actually made the registration. Now, GNR says that .name would be operated as a ''fat registry,'' with a single source of Whois data for registrations throughout the .name registry. The implications of this change for public access to Whois data are completely unclear. GNR, which is based in the United Kingdom, apparently has been proceeding under the assumption that the U.K. privacy laws would prevent it, as a registry, from providing the full range of Whois data that are currently available from registrars in the .com/net/org environment. While the basis for this assumption is unknown—after all, gTLD registrars based in the U.K. have been providing public access to full Whois data for some time without apparent difficulties—so is its impact on the revamped, ''fat registry'' Whois service to be offered by .name.
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In short, at this moment it is virtually impossible to evaluate the extent to which the new .name registry will incorporate the safeguards required to protect intellectual property owners in the roll-out of this new Top Level Domain. In this regard, we are somewhat concerned by last week's action of the ICANN Board of Directors that puts conclusion of the negotiations with all four of these new TLD operators on an extremely fast track.(see footnote 14) While we are continuing our discussions with GNR, we urge ICANN to make public as soon as possible all the provisions of all the proposed registry agreements, and to provide adequate opportunity for these to be analyzed and evaluated, before finalizing the agreements. This is not a plea for delay: throughout the new TLD approval process, we in the IPC have amply demonstrated our readiness, our willingness, and our ability to undertake these reviews quickly and thoroughly. It is, rather, a recognition that it would be folly to forge ahead until we have clear, definite answers to these critical questions of charter definition, charter enforcement, dispute prevention, and accountability and transparency through unrestricted public access to Whois.
Until a practical and specific proposal for charter definition and charter enforcement is put forward by the sponsors of .name, it cannot realistically be viewed as any different than .com. If anyone may register in this new domain for any purpose, including to establish sites devoted to copyright piracy, child pornography, consumer fraud, or any of the other illegal activities that currently infest the existing gTLDs, this outcome would be extremely disappointing, to say the least, and would seem to add little to the overall experience of the Internet other than more of the same. The most charitable way to describe it would be as a missed opportunity to bring more accountability and integrity to the online environment. Congress and the U.S. government should make it clear to ICANN that this opportunity must not be squandered, and that the failure to seize it would not bode well for the approval of these or future proposed new TLDs. Meaningful charter restrictions, and practical means of charter enforcement, should be the hallmark of any new TLD that purports to offer a ''proof of concept'' of any approach to domain name management other than the wide-open, anything-goes approach of .com. And the well-established role of publicly accessible Whois data in enhancing the accountability and transparency of online activities should be preserved and strengthened, not undermined, in the new TLD environment. At least with respect to .biz and .name, we cannot yet say whether these bedrock principles will be respected.
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In closing, let me emphasize that the rollout of new TLDs is still a work in progress. No final decisions have been made by ICANN, and any final decision it makes is subject to the approval of the U.S. Department of Commerce, which retains control over the authoritative root server and thus over the introduction of any new TLDs. We urge the subcommittee to monitor closely the developments in this sphere over the next few months, as the new TLDs are rolled out, to ensure that the protection of intellectual property rights is adequately provided for in the launch of new TLDs, and to stress the importance of careful evaluation of the impact of the new TLDs on intellectual property interests, before any further expansion of the domain name space is undertaken.
INTELLECTUAL PROPERTY PROTECTION IN THE GTLDS
The existing gTLDs, particularly .com, remain the most heavily populated and widely used domains, both for legitimate e-commerce and communication, and for pirate activity. Real-time unrestricted free public access to Whois data is of particular importance in this realm.
Over the past two years, the means of providing Whois data in the gTLD environment has been transformed. In 1999, there was a single place where a Whois query from a member of the public—i.e., who is the registrant of xyz.com?—would be answered after searching the full range of registrations in the relevant TLD—in this example, .com. This reliable ''one-stop shopping'' no longer exists. This change is a by-product of the advent of competition in registration services in the gTLD environment.
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Today, instead of a single registrar—Network Solutions Inc., or NSI—there are over 160 accredited registrars, each of which maintains Whois data on the registrations it is responsible for.(see footnote 15) The role of Verisign (which acquired NSI) as a registry in responding to Whois is limited to identifying the registrar holding the full set of Whois contact data.(see footnote 16) With this so-called ''thin registry'' Whois model, there is no longer an authoritative source for current Whois data across the entire gTLD.(see footnote 17) In this sense, over the past two years the unrestricted public availability of Whois in the gTLD environment has not been maintained; it has been weakened.
The obligation of an ICANN-accredited registrar to provide free, unrestricted public access to real-time Whois data is part of the Registrar Accreditation Agreement (RAA) that each registrar signs with ICANN. Making Whois accessibility an explicit contractual obligation of registrars was a positive step for ICANN, but its value has been compromised by three factors.
First, the scope of the obligation is not clear. ICANN staff has publicly interpreted the RAA provision to require registrars, not only to allow the public to identify who is the registrant for a particular domain name, but also to offer the ability to search based on other data elements: for example, to find out all the domain names in a gTLD that have been registered by a particular named registrant, or by any registrant who states a given mailing address. These features, which were provided to at least some extent by the unified NSI Whois service that existed prior to the introduction of registrar competition, are particularly important for trademark owners, since these more robust search capabilities can help provide evidence of a pattern of cybersquatting, a key criterion for obtaining relief both under ICANN's Uniform Dispute Resolution Procedure (UDRP) and under the Anti-Cybersquatting Consumer Protection Act. They would also be quite valuable to copyright owners as an investigative tool. But most registrars are not currently providing this service, and some of them contest whether they are contractually obligated to do so.
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Second, the RAA clearly contemplates the development of a registry-wide Whois service, to restore the authoritative ''one stop shopping'' for Whois data. Indeed, in the RAA, ICANN reserved the right to require the registrars to contribute their data to a centralized Whois database if that were needed in order to bring the comprehensiveness of Whois searching back to the level that existed before the introduction of competition in the registration business. But to date, there has been no discernible movement toward registry-wide Whois, and ICANN has failed to push the registrars to provide it.
Third, and most important, ICANN's capacity to enforce the Whois obligations contained in the RAA needs improvement. For instance, despite the public statement by the General Counsel of ICANN that ''most registrars appear not to be in compliance'' with their RAA obligation to provide a fully searchable Whois,(see footnote 18) CCDN is unaware of any enforcement action, formal or informal, that ICANN has ever taken to enforce this obligation. This is particularly disappointing in light of ICANN's strongly expressed view that only it, and not any third party, can enforce the Whois-related obligations of an accredited registrar under the RAA.(see footnote 19)
Accredited registrars also have some obligations under the RAA concerning Whois data quality. The prevalence of inaccurate or outdated contact information in the Whois database limits its usefulness as an anti-piracy tool. The RAA gives ICANN the authority to develop data quality or verification standards that registrars would be obligated to fulfill. ICANN has not done so, even though steps could easily be taken to eliminate obviously false contact data at little or no cost to registrars. The RAA also requires registrars to accept reports from third parties (such as copyright owners) of false contact data, and to cancel registrations when contact data cannot be verified. Compliance with these obligations is extremely sparse.
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In short, Whois data remains generally available in the gTLD environment, but its comprehensiveness and searchability have declined over the past two years, and the serious problem of data quality has never been addressed. The U.S. government should urge ICANN to pay more attention to the implementation and enforcement of the registrars' RAA obligations and to increase its efforts to restore Whois at least to the level of usability that the public enjoyed up until the advent of registrar competition in 1999. Since the gTLD Whois environment provides a template for these services in other parts of the DNS, increased attention here could improve accountability and transparency throughout the Internet.
In a surprise announcement three weeks ago, ICANN and Verisign proposed a substantial revision of the 1999 agreement under which NSI (Verisign's predecessor) was allowed to continue to operate the .com,. net and .org registries. These proposed revisions are complex and far-reaching, and the time frame for bringing them into effect is quite short. The IPC has been studying these proposals, and we believe that for the most part they will not have much impact on the protection of intellectual property in the gTLD environment. We are concerned about the proposal to excise from the current registry agreement a provision specifically addressed to establishment of a registry-wide Whois, although we recognize that more general provisions of the revised agreement would cover this topic. We have also urged Verisign, which has pledged to invest $200 million in R&D and operational improvements to .com if the contract revisions are accepted, to specifically earmark some of this funding to accelerating steps toward re-establishing registry-wide Whois, enhancing the available search functions, and linking this database to the Whois data from other registries throughout the DNS. We hope that such a commitment is forthcoming before the Department of Commerce gives final approval to these proposed revisions.
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INTELLECTUAL PROPERTY PROTECTION IN THE CCTLDS
The Whois situation in the ccTLD world is much more varied than in the gTLDs. The roughly 240 country code domains, which on the whole are growing faster than the gTLDs, vary dramatically in size, and their operators also form a wide-ranging spectrum with regard to technological sophistication. Although traditionally many ccTLDs have been relatively closed environments, in which it was difficult to register a domain name, a growing number of ccTLDs operate on a much more open basis, in which nearly anyone can register nearly any domain name for nearly any purpose. In short, more and more ccTLDs are being run like gTLDs, but without any standard framework or legal obligation with regard to Whois (or with regard to resolution of intellectual property disputes, for that matter). In these circumstances, the threat that some ccTLDs will become attractive venues for piracy is real and immediate. In some ccTLDs, pirates can enjoy the ease of registration and the accessibility to the public they would find in a gTLD, but without the transparency and accountability provided by the presence of a publicly accessible Whois database.
Today, some ccTLDs do provide free, publicly accessible Whois data on a basis comparable or even superior to that offered in the gTLD environment. Most, however, do not. Some charge a fee for this basic registrant contact data; some require Whois requesters to meet some sort of special qualifications in order to obtain access; some send Whois data by surface mail rather than making it available online; some drastically restrict the data elements made available via Whois (for example, providing only the name of the registrant without any other contact data); some simply do not provide Whois access at all. It is especially distressing that many of these shortcomings can be observed, not just among small or isolated ccTLDs that may lack the technological know-how or resources to provide state-of-the-art Whois services, but among some of the big commercial operations, based in the U.S., who have secured the ccTLD franchise from tiny territories and are aggressively capitalizing on it to run what are gTLDs in everything but name.(see footnote 20)
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The clear solution to this problem would be for ccTLDs to take on the same obligations with regard to Whois that now apply in the gTLD world. However, progress toward this solution would also require resolution of a number of unrelated but complex issues regarding the financial, political and legal relationships among ICANN, the ccTLD operators, and the governments of the territories to which the ccTLD designations relate. It is not surprising that progress has been slow. However, there have been a few positive signs recently.
For example, at the request of the U.S. and a number of other governments, the World Intellectual Property Organization (WIPO) has undertaken an important initiative to assist ccTLDs in developing and implementing sound policies to prevent intellectual property disputes from arising in the operation of ccTLD registries, and to resolve those disputes which do occur. WIPO recently released a draft ''best practices'' document that strongly encourages ccTLDs to make the full range of Whois data publicly accessible in real time without significant restrictions. We applaud WIPO for its initiative in this regard, and hopes that the recommendations of this authoritative and experienced UN agency will be persuasive to many ccTLDs whose Whois policies desperately need improvement. (see footnote 21)
We are concerned, however, about reports that the ccTLD constituency within the ICANN Domain Name Supporting Organization has adopted its own ''best practices'' statement that does not address the registrant contact data issue. Such a proposal would be seriously deficient and could not provide an acceptable standard for determining a given ccTLD's role within the ICANN system. We look forward to working with the ccTLD constituency to promote a better statement of the minimum standards that these important registries should strive for in this regard.
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Bringing greater transparency and accountability to the ccTLD world through improved public accessibility of registrant contact data must be a high priority both for ICANN and for the U.S. government. In its participation in ICANN's Governmental Advisory Committee (GAC), the U.S. should continue to urge its foreign counterparts to insist that the operators of ccTLDs provide free, real-time, unrestricted public access to the full range of Whois data elements. Such a step would be in the best interests of consumers, creators, and Internet users in each of these countries, and would facilitate the full integration of these ccTLDs into the mainstream of global electronic commerce. The U.S. government should also ensure that the ccTLD which it controls, .us, provides a model in this regard. Finally, we need to consider what steps should be taken to ensure that U.S.-based ''virtual gTLDs'' that operate two-character domains that have been delegated to them by foreign territories adhere to the best possible practices with regard to transparency and accountability, lest they become havens for online piracy and an embarrassment to the United States.
CONCLUSION
On behalf of both CCDN and IPC, I commend the subcommittee for holding this hearing and for its continued commitment to safeguarding intellectual property rights in the DNS. The inauguration of new TLDs marks a critical point in ICANN's development. The subcommittee's active oversight of the activities of ICANN and of the Department of Commerce team that interfaces with it is especially vital in the weeks and months ahead. Thank you for this opportunity to present the perspectives of copyright and trademark owners this morning.
Mr. COBLE. Thank you, Mr. Metalitz, and thank each of you. This is significant subject matter, not only for this Subcommittee but for the Congress and for society, and I appreciate your contributions.
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Mr. Touton, I am concerned about the recent announcement from ICANN that would allow the staff to enter into agreement for these new TLDs 7 days after they are posted on the Internet, without any further formal action. Is there a need to accelerate things when there are obviously disagreements remaining? As to whether or not 7 days is acceleration, it seems to me it probably is.
Mr. TOUTON. Actually, it is not. The agreement was posted in February and has been open for public comment, and there was an extensive discussion at the Melbourne meeting. There are a few appendices, mainly technical in character, that describe the particular protocol, electronic protocol between registrar and registries, probably the most significant one.
There is a need for each of the four large top level domains, frankly, to get on with business. Originally there was a goal set to complete this by the end of last year, and it has been delayed since then because frankly it was a harder problem than anybody knew.
But I am confident we are dealing with this in a careful way. There has been extensive consultation with the intellectual property interests by each of the four, and I do feel that 7 days, it is the last 7 days that you are talking about, of a process that has been much longer.
Mr. COBLE. Very well. Thank you, sir.
Ms. Broitman, I am told that your company has been the most responsive to the concerns of the intellectual property community when setting up the .pro TLD. What would you say to the companies that maintain that taking such precautions is too cumbersome or too expensive?
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Ms. BROITMAN. Thank you, Mr. Chairman. I guess let me answer that in part by stealing Steve Metalitz's words, that there have been a lot of different models in these new TLDs, and some have had more intellectual property protections than others, and in some ways that is the nature of the ICANN process, is to provide for a variety of different models that will answer the needs of the Internet community.
.pro serves the very market that is going to care the most about intellectual property protections. It makes the most sense for our own business model to make sure that lawyers, for example, are satisfied that we are providing the kinds of protections that they would seek. And so we believe that it makes perfect sense to us, and we believe that it is worth the investment, and it is going to be a significant investment, to be sure that we are providing intellectual property protections that will perhaps then actually raise the playing field of the entire industry.
Mr. COBLE. Thank you, Ms. Broitman.
Mr. Neuman, I am troubled by this question, and hopefully your astute response will assuage my discomfort. As I understand it, the key to your domain is that you will only register those entities who have a bona fide commercial activity. However, your company has resisted the suggestion to list IP piracy and counterfeiting as not being forms of bona fide commercial activity and therefore subject to your charter enforcement mechanism. Assuage my discomfort.
Mr. NEUMAN. Thank you, Mr. Chairman. We do agree with Mr. Metalitz that piracy is a significant problem. However, we believe that the issue of piracy, as well as copyright infringement and trademark infringement, are adequately addressed under existing law.
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We believe that, as a neutral third party registry, that we are not the ones with the expertise or the resources to determine what is and what not piracy, what is and what is not copyright infringement, nor do I believe that most intellectual property owners would want us to tackle those issues that are best addressed by the different national courts of the different nations of the world.
Mr. COBLE. What was the response to your presentation to the IPC at the recent Melbourne ICANN meeting?
Mr. NEUMAN. Thank you again, Mr. Chairman. At the recent meetings in Melbourne, the IPC was very happy with the progress that we have made and the intellectual property protections that we have included in our start-up procedures, and in fact many have called it a workable solution, and some have even said to us that it might even be a better alternative to the sunrise.
A lot of them—also, as Mr. Metalitz was saying, this is proof-of-concept phase, and we want to roll this out and see how it works. And indeed it may be a more viable alternative to the sunrise, and one that we are very excited to roll out as soon as possible.
Mr. COBLE. I thank you, sir.
Mr. Metalitz, I have a question for you, but I see the red light illuminates in my eye now, so I may get to you on the second round.
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I will now recognize the gentleman from California.
Mr. BERMAN. Thank you, Mr. Chairman.
Mr. Neuman, just let me make sure I understand. In the .biz registry, your effort is to have a registry that is just for businesses. Is that correct?
Mr. NEUMAN. Yes, sir.
Mr. BERMAN. And what do you do with an applicant who asserts it is a business, to determine whether in fact it is a business?
Mr. NEUMAN. We have a restrictions document which has been posted on the ICANN web site, which provides that any company that is not a bona fide business according to the criteria that were set forth in that restrictions document, will be handled through a restrictions dispute resolution policy which is very much like the UDRP, which will be decided by panelists that will make determinations as to whether or not it is a bona fide business.
Mr. BERMAN. What activates that dispute resolution mechanism?
Mr. NEUMAN. That would be activated by third parties that believe that they are suffering an injury due to the registration.
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Mr. BERMAN. So, in effect, if it is not a trademark issue, if it is not infringing material on the site, there is no one out there who has an interest that is going to cause them to independently seek to verify whether or not a new registrant is in fact a business?
And why, in that situation, don't you just become another, .com, a new .com? If there is nothing inherent in the process and there is no independent verification by you, and there is nothing inherent in the process that causes someone to want to determine whether it is a business, it seems to me it may be a virtual .biz but in reality it is just a .com.
Mr. NEUMAN. I would just like to point out, as well, that we do have an antispeculation clause, so it doesn't necessarily have to be trademark owners that are interested in getting the sites.
So if, for example, there was a business or a start-up or a small business, someone that wants to use the domain name, even if it is not a trademark issue, they can challenge any domain name that is existing, that is registered, if it is not used for a bona fide business purpose. Or, as far as the antispeculation, if the domain name is being used solely to sell, in other words, if there is a web site up there that says that this registration, this domain name is for sale, they as well can challenge.
But at this point it is a little bit too early to determine that if trademark owners don't challenge, that nobody else will be interested.
Mr. BERMAN. Well, that will cost someone $1,500, though, right?
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Mr. NEUMAN. The costs haven't yet been determined, and we are in negotiations with the dispute providers as to determining efficient procedures and mechanisms. Again, those costs are not determined by the registry or registrars, even under the existing UDRP, but by the dispute providers themselves.
Mr. BERMAN. Well, WIPO indicates that the average cost for these dispute resolutions are about $1,500.
Mr. Touton, could you—as I mentioned in my opening statement, you have asked everybody to address intellectual property concerns, all the new applicants to address those concerns. Why didn't you mandate a minimum level of intellectual property protections? In a situation where some of the registries, where we have created a situation where some of the registries may become havens for piracy and cybersquatting, why didn't you at least try and set some uniform minimum standards for intellectual property protection?
Mr. TOUTON. There were a couple of reasons for that. First, there was, there is in essence a minimum base level which is what is currently used for .com, .net, and .org, and while it was not expressly stated——
Mr. BERMAN. Describe that existing minimum level of protection.
Mr. TOUTON. Okay. There is ''Whois'' service that is available at the registry and registrar levels, and there is the Uniform Dispute Resolution Policy. And as a matter of registrar practice, there are a variety of best practices, including a requirement that domain registrations be prepaid, that the registrant certify that it is giving accurate ''Whois'' data; a provision for the registrar that if the registrant, if the accuracy is challenged, the registrar will fix it; you know, a variety of things that are done at the registrar level, that is, the retail level, rather than at the wholesale level.
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In fact, most protection for intellectual property is probably best accomplished at the registrar level. None of that changes by any of the introduction of these four new top level domains.
Mr. BERMAN. All right.
Mr. Chairman, I have a follow-up, a few more questions, but perhaps we can have a second round.
Mr. COBLE. I think if time permits we will try to do a second round of questioning.
The gentleman from Michigan.
Mr. CONYERS. Thank you, Mr. Chairman, and thank the witnesses.
Mr. Touton, this hearing seems to revolve around us trying to get ICANN to promote more intellectual property rights. Do you get that impression?
Mr. TOUTON. That is the message I am getting.
Mr. CONYERS. Okay. All right. Now, what is your general reaction to this perception that seems to be held here? I guess you are defending ICANN here this morning, saying that you are very sensitive to copyright and trademark considerations, and everything is okay and will get better. Did I hear that in your comments?
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Mr. TOUTON. I think what—let me make clear first, you know, ICANN's mission is not limited to protecting intellectual property. Our prime mission is the technical mission to coordinate the operation of the Internet in a way, in such a way that connectivity is maintained, and when you send an e-mail you know where it is going to go, and it is going to get there. That is our prime mission.
Of course, the way we accomplish that mission can have some effects on businesses, intellectual property interests, free speech advocates, all sorts of different areas, and——
Mr. CONYERS. Okay, so what kind of job are you doing in that area, from your point of view?
Mr. TOUTON. I think we are doing a good job. The Internet is still working, our prime mission.
Mr. CONYERS. Okay, and are you promising to do better, or do you think you are doing really enough and we don't need to do much more?
Mr. TOUTON. We are always trying to improve things. This is a very difficult job that ICANN has been handed,
and——
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Mr. CONYERS. Okay. Now, Mr. Metalitz, should I take comfort from these conversations we are having here this morning?
Mr. METALITZ. Well, Mr. Conyers, I think it is interesting that Mr. Touton talked about the technical mission of ICANN, and ''technical'' is a very fluid and flexible word sometimes. He described, for example, the status of these agreements as complete; there is only some technical appendices that are left.
Well, we look at issues such as ''Whois'' which we have talked about. The baseline agreement says the registry shall provide a ''Whois'' service and it shall be described in Appendix O. I think it is O. I may have the letter wrong. Appendix O hasn't been made public yet, so until we know what is in Appendix O, we can't really evaluate whether these new top level domains are really going to contribute to the healthy growth of the Internet through legitimate electronic commerce, or whether they are just going to be havens for piracy. So I think some of those technical issues are extremely important, and I think ICANN needs to pay close attention to them.
Mr. CONYERS. So I can't be as comforted as I want to be, Mr. Touton, with this other advice coming at me. So now what do we do?
Mr. TOUTON. Well, all I can say, Mr. Conyers, is that——
Mr. CONYERS. Take medicine.
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Mr. TOUTON. Pardon?
Mr. CONYERS. No, go ahead.
Mr. TOUTON. You know, the process has gone forward. The particular appendix that Mr. Metalitz mentioned has not yet been posted, but it will be based on extensive proposals that have been posted since August—excuse me—October of last year. The reason it has not yet been posted is in fact a discussion, a very technical discussion about the xml format for data interchange. There are a lot of details here——
Mr. CONYERS. Yes, I know it is very technical. We all agree to that. But the whole point is, will we have to call you back after it is posted and we begin to go through some of the criteria that have been discussed, to see if we are really going to protect copyrights and trademarks, which is not your prime mission. But this is what this Committee does, so that is why we are emphasizing that instead of some other subject.
Mr. TOUTON. I appreciate that your mission is different than ours, and that is why it is good to have a hearing——
Mr. CONYERS. But you are not giving me the comfort level that I would like to get optimally out of witnesses of your caliber.
Mr. TOUTON. I guess I don't know what I can——
Mr. CONYERS. You don't know what you can do to make me feel——
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Mr. TOUTON. To give you the comfort level.
Mr. CONYERS. There are plenty of suggestions floating around. You haven't heard any yet, is that the idea? Not yet?
Mr. TOUTON. No.
Mr. CONYERS. Okay. Well, that is why we are having a second round. Mr. Berman can't wait.
Okay. Thanks, Mr. Chairman.
Mr. COBLE. Mr. Conyers, Mr. Touton says to take two aspirin and call him in the morning. Mr. Touton didn't say that, I said it.
The gentlelady from California.
Ms. WATERS. I'm sorry. Mr. Chairman and Members, I have been playing a little catch-up here, trying to work on several things at one time, but I do have a few questions I would like to ask.
I am first of all concerned about decisionmakers at several levels. For example, ICANN, is it, that will have the responsibility for kind of this oversight of these new companies, who makes up the board? I mean, who are these people?
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Mr. TOUTON. Perhaps I should respond, Congresswoman Waters. The board of ICANN consists of 19 individuals that are drawn from all around the world, that are selected by various sets of stakeholders. The basic idea of ICANN is that the Internet community and all of those who participate in the Internet community should work together to develop consensus solutions.
That is often one of the things that people find, frankly, frustrating about ICANN, is that consensus is often very hard to achieve, as I am sure you all know, and things take longer than people would like. This top level domain introduction has taken several years, as a matter of fact, and we are hopefully coming near the end.
Ms. WATERS. But tell me who, who is on the board, this worldwide board? Those 19 names, just quickly tell me who they are.
Mr. TOUTON. Well, okay. There is Frank Fitzsimmons. There is Vint Cerf. There is Amadeu Abril. There is Hans Kraaijenbrink. I mean, do you want me to list them all or——
Ms. WATERS. Yes, I want you to list them all and tell me what countries they represent.
Mr. TOUTON. Okay. Well, let me start over, then.
Ms. WATERS. Yes.
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Mr. TOUTON. From the United States, there is Frank Fitzsimmons, Linda Wilson, and Vint Cerf and Stuart Lynn. From Canada there is Jonathan Cohen and Ken Fockler. From the Netherlands there is Rob Blokzijl and Hans Kraaijenbrink. From Spain there is Amadeu Abril. From Germany there is Helmut Schink and Andy Mueller-Maguhn. From Japan there is Masanobu Kato and Jun Murai. From Korea there is Sang Kyong. How many have I listed so far?
Ms. WATERS. I don't know, but that is getting close to 19.
Mr. TOUTON. Okay. And from Ghana there is Nii Quaynor.
Ms. WATERS. And how do these people get to be the board of directors of ICANN?
Mr. TOUTON. There are four cadres on the board that are selected in different ways. Three of them are selected by what are called supporting organizations, which are groups of people interested in the three principal areas that ICANN is involved in, and that is the unique assignment of names, the unique assignment of IP addresses, and the unique assignment of protocol numbers. So basically they come from technical groups, and there is a broad-based, open and transparent community-based process within those communities where each of those three select three, so that is nine of them.
Nine others are set aside to provide user participation on the board of directors. Last year we had a global online election that selected five of them. There were—that was a very challenging task, and there were some problems in the election that are now being studied by a group, by an ad hoc study group.
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And then the final one, the number 19, is our president who is actually elected by the other 18 members.
Ms. WATERS. And who is the president?
Mr. TOUTON. The president is a man who just took office last week, named Stuart Lynn, who has spent many years as the chief IP—excuse me—the chief information technology officer for the University of California.
Ms. WATERS. And even though this may be duplicative of some discussion that you have already had, could you just quickly and succinctly tell me what your main purpose and your goals are for ICANN?
Mr. TOUTON. The prime mission of ICANN is to provide technical coordination of the Internet by developing consensus within the community. In order for a large network like the Internet to work, computers have to be uniquely identified so that messages from one to another get to the right place, and our prime mission is to have, to organize a system in which, by agreement, everybody agrees on a unique numbering system, and we accomplish that through a fairly extensive mechanism.
Ms. WATERS. All right. Mr. Chairman, I am going to yield back and discontinue at this point. I have a lot of other questions, and maybe I will get an opportunity before we close down today.
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Mr. COBLE. Well, yes. Your time has expired, and we are going to try to do a second round.
Ms. WATERS. Thank you.
Mr. COBLE. Mr. Nadler, although not a Member of the Subcommittee, requested that he be allowed to sit on the podium, and that request was granted.
Mr. Nadler, you will not be permitted to question the witnesses, but if you would like to make a statement, we will be happy to recognize you.
Mr. NADLER. Thank you, Mr. Chairman, and I thank you for your consideration in allowing me to sit here on this Subcommittee this morning. I really came here for two purposes: one, to listen, especially since I can't ask question; but secondly, to extend particularly warm greetings to one of the witnesses, Elana Broitman of Register.com, a company based in my district in New York, in what has been known as Silicon Alley. I am sorry I didn't hear her direct testimony, but I will read it, and I just wanted to express my special welcome to her.
Thank you, Mr. Chairman.
Mr. BERMAN. Will the gentleman yield?
Mr. NADLER. Yes, I will.
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Mr. BERMAN. You realize she got the job by hiding on her resume that she used to work for the International Relations Committee.
Mr. NADLER. Well, that is just an intelligent thing to do.
Mr. COBLE. And it worked.
Mr. NADLER. I yield back, Mr. Chairman.
Mr. COBLE. And it worked very favorably for you, Ms. Broitman.
Well, let's try to commence on a second round. Mr. Metalitz, I did not get to you. I am aware that you have worked very diligently in trying to fashion these new TLDs in a manner acceptable to the IPC. What could be done in the future to ensure sufficient intellectual property protections as new TLDs may be added?
Mr. METALITZ. Mr. Chairman, that is a very good question. I think there certainly could be some improvements in the process. I think ICANN, to its credit, identified this issue as one that all the applicants had to address. I think they could be more specific in the future about what types of protection should be included as a baseline, similar to what Mr. Berman was asking about in his question.
So I hope that after we go through this exercise of adding the new top level domains, we also have an adequate period to evaluate how they are working. We hope that we will learn something about which are the best mechanisms available, which ones work best in practice, and that we can incorporate that learning into the next round of new top level domains.
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Mr. COBLE. Let me put this question to the panel at large. How about sharing with us your concerns, if any, regarding plans by some companies to set up or establish an alternate Internet? What are the benefits to or dangers posed for the Internet in general, and for intellectual property owners specifically? Any of you may answer that. Mr. Touton?
Mr. TOUTON. The others are looking at me, so I will start. The issue that you raise is a very important one, I think. The introduction of alternative routes to the Internet poses many problems, not only for intellectual property owners but also for consumers, and I think a number of the initiatives that have been announced lately do promise to provide a great deal of consumer confusion, that are matters that should be of interest to the Committee, Subcommittee, and as well as to the various enforcement agencies such as the Federal Trade Commission.
Mr. COBLE. Thank you, Mr. Touton.
Did anyone else want to respond to that?
Mr. METALITZ. Mr. Chairman, just from the perspective of intellectual property owners, up until now this has not been a major concern for us because—these alternative root systems, as they are called—really no one was able to reach them, or only very few people were able to reach them. So if there were violations and infringements, the damage was not that great.
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Now, this could change with some of these new proposals, I think if some of them take off, we would be much more directly concerned with not only the consumer confusion issues that Mr. Touton mentioned, but also with whether intellectual property rights are being respected.
Mr. COBLE. Thank you, sir.
Let me have a bench conference with my colleagues here. Folks, we have a 15-minute vote on now that will be followed by two 5-minute votes. We can either excuse the panel, or if you all want to come back and continue the second round, I am amenable to whatever the Subcommittee would like to do.
Mr. BERMAN. Mr. Chairman, I had a couple of questions I would like to ask. I don't know how many other——
Mr. COBLE. John? Bill?
Mr. DELAHUNT. I think if we have questions, Mr. Chairman, we could submit them, so that we wouldn't hold the panel.
Mr. COBLE. The record will be kept open for 1 week. Why don't we recognize Mr. Berman for his questions, and then we will be able to excuse the panel.
Mr. BERMAN. In fact, perhaps the witnesses could respond in writing if they have any thoughts on some of these things, but just different things occurred to me as I listened to the witnesses.
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First of all, on the ''Whois'' database, the absence of a uniform one and the absence of any ICANN requirement that there be some verification of the data that applicants submit. There are two issues. One is how much data is put on the database, and second is, is it accurate?
I am looking at a database, a ''Whois'' database printout for Teamrocket.com. The registrant is Ali Angel. Now, I know a lot of Angels, and there may be an Ali Angel, but his address listed here is 1234 Evil Avenue. We checked on the Internet, and there is no Evil Avenue, and there is no 1234 Evil Avenue. Simple standards about—to make that ''Whois'' database or seven ''Whois'' databases or seven times every registrar ''Whois'' databases accurate, would be useful. That is one point.
I listened, the .biz registry, Mr. Neuman, he doesn't really have a prescreening process. He has a ''We'll take your trademark evidence and we'll send it to the person who has sought a registration, and we'll wait a while so you can go to court or go to a dispute resolution process, but after a certain period of time we're registering that person, even if there's no''—why not the opposite?
Where there is prima facie evidence that there is a trademark and somebody is trying to register that trademark who isn't the right person, why not let that person be the initiator of the Uniform Dispute Resolution Process or the court action, rather than make the one for which there is prima facie evidence be the initiator and not be able to get a quick blocking of the registration?
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You talked about Internet consensus. That is all well and good. The sense I get from my e-mails is, the Internet consensus is that everything should be for free. We have trademark laws and we have intellectual property laws, and I think it is appropriate, especially in this context, to try and do some basic things to facilitate the implementation of those laws.
And it just seems to me like we are not quite there yet in terms of doing things that, with very little effort, that people could do. I mean, Ms. Broitman talked about some of the things they are doing, but others aren't doing anywhere near as much to determine it.
And so those are just the kinds of issues I would like to hear a little bit more of a response on, if you would be willing. I realize the time doesn't permit us to hear it now. That is the breaks. But you are willing to put something in writing in that regard, I would be interested in seeing it.
Mr. COBLE. I thank the gentleman.
And I say to the panel, we pride ourselves upon being panel-friendly, and we are pleased to be able to excuse you all now, but I think you can probably anticipate questions from the Subcommittee Members, because this is a very important matter.
Mr. Schiff, did you want to make a brief statement before we go vote?
Mr. SCHIFF. Mr. Chairman, thank you, and I will be exceedingly brief. First of all, I want to thank the Chair for allowing me to attend as an ex-officio member.
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Mr. COBLE. You are indeed welcome.
Mr. SCHIFF. And really want to echo the sentiments that my colleague from California made. I represent the Pasadena-Burbank-Glendale area. I have a lot of constituents very concerned about intellectual property issues and protection. And given the incredible asset this country's intellectual property is, given its effect on our trade deficit, in other areas, it really is quite astounding when you consider that more than agriculture, more than natural resources, our own human intellectual resources have driven the engine of this economy and had such a positive impact on our trade situation with the rest of the world.
I have to concur with the remarks of Mr. Berman that we ought to look at every change in the law in this area and change of practice with an eye toward what are the opportunities to maximize the protection for intellectual property, not only as a basic right of those for whom it is the sweat of their brow, but it is also in our strong national economic interest. And I very much appreciate your testimony today.
Mr. COBLE. We want to again express our thanks to the witnesses for your testimony and the contribution made here today.
This concludes the oversight hearing on ICANN and new gTLDs and the protection of intellectual property. The record will remain open for 1 week. Thank you for your cooperation and for those of you who attended. The Subcommittee now stands adjourned.
[Whereupon, at 11:47 a.m., the Subcommittee adjourned.]
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A P P E N D I X
Material Submitted for the Hearing Record
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The DNS replaced an earlier, smaller capacity translation mechanism known as the ''hosts.txt'' system.
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See Resolutions of the ICANN Board on New TLDs, at http://www.icann.org/tlds/new-tld-resolutions-16jul00.htm.
(Footnote 3 return)
http://www.icann.org/melbourne/new-tld-agreements-topic.htm.
(Footnote 4 return)
A TLD is the domain name address, such as .com, .net, and .org. ICANN selected seven new generic TLDs: .pro, .info, .biz, .name, .aero, .museum, and .coop.
(Footnote 5 return)
VeriSign does not offer a centralized and complete authoritative database of whois records. It does not offer advanced search tools, such as those planned by .pro.
(Footnote 6 return)
The following ten organizations participate in CCDN: American Film Marketing Association (AFMA); American Society of Composers, Authors and Publishers (ASCAP); Association of American Publishers (AAP); Broadcast Music, Inc. (BMI); Business Software Alliance (BSA); Interactive Digital Software Association (IDSA); Motion Picture Association of America (MPAA); National Music Publishers' Association (NMPA); Recording Industry Association of America (RIAA); and Software and Information Industry Association (SIIA).
(Footnote 7 return)
Among the IPC's more than 40 institutional and business members are the International Trademark Association (INTA); the American Intellectual Property Law Association (AIPLA); and the International Intellectual Property Alliance (IIPA), as well as a host of international legal and business organizations based outside the United States.
(Footnote 8 return)
In generic Top Level Domains like .com, Whois operates at the second level, i.e., it provides contact information for the registrant of a Second Level Domain such as iipa.com. In some other TLDs, in which registrations take place at the third level, Whois data identifies the registrant of the third level domain, e.g., sony.com.au.
(Footnote 9 return)
Also like Roman Gaul, there are barbarians on the other side of the frontier. These are the so-called ''alternative roots,'' servers that route Internet traffic to other top-level domains besides those contained in the ''authoritative root servers'' operated under ICANN supervision on behalf of the U.S. Department of Commerce. At present, only a tiny minority of networked computers use browsers that point to the alternative roots, so this parallel universe of other TLDs is currently accessible to only a relative handful of Internet users. Accordingly, while undoubtedly some sites on the alternative roots are used for purposes of piracy, and others employ domain names that are confusingly similar to established trademarks, the problem is confined to a small coterie of enthusiasts and is not viewed as a major threat by most intellectual property owners. Of course, this situation could change, and if it does, the need for unrestricted public access to Whois data on registrations in these alternative roots, and for steps to prevent and resolve domain name disputes in these spaces, will become more pressing. In this regard, CCDN and IPC members are following with great interest—and some concern—the recent efforts of New.Net to establish and promote what is, in effect, an alternative root system. This development raises a number of questions about stability of the DNS and the likelihood of consumer confusion.
(Footnote 10 return)
Provisions of the proposed agreements between ICANN and the operators of the new TLD registries are being posted piecemeal on the ICANN web site. Until this posting is complete, it is impossible fully to evaluate the ground rules under which a given new TLD will operate.
(Footnote 11 return)
By contrast, in the ''thin registry'' model, the Whois data available from the registry serves only to identify the registrar that sponsored the registration in question. A request must then be made to that registrar for the full set of registrant contact data.
(Footnote 12 return)
As noted above, negotiations have barely begun with the other three applicants. Since all three propose highly restricted domains, the intellectual property concerns may be less serious than those encountered with some of the first four applications.
(Footnote 13 return)
The subcommittee should bring this experience to bear in evaluating any assertion that .name should be exempt from the requirement for a meaningful and enforceable charter, or that the accountability and transparency standards provided by publicly accessible Whois should somehow be relaxed, because of its self-articulated character as a ''personal'' or ''noncommercial'' space on the Internet.
(Footnote 14 return)
Under the resolution adopted by the ICANN Board, a contract with a new TLD registry could be signed, without further Board action, within seven days after the posting of all contract terms and appendices for that TLD registry is completed.
(Footnote 15 return)
Not all these accredited registrars are actively taking registrations.
(Footnote 16 return)
Verisign is also a registrar. The agreements accompanying the introduction of competition gave NSI strong incentives to spin off either the registry or registrar business by this year. On March 1, Verisign and ICANN announced proposed contractual changes that would, among other things, eliminate the divestiture incentives. As discussed below, CCDN and IPC members are currently analyzing the proposed changes for their impact on the interests of intellectual property owners.
(Footnote 17 return)
A number of services purport to conduct Whois searches across all gTLD registrars and to provide the results free and online, but there is no guarantee that these services are comprehensive or that the data they provide is fully up to date.
(Footnote 18 return)
See http://www.icann.org/committees/whois/touton-letter-01dec00.htm, question 7.
(Footnote 19 return)
See to ICANN's amicus filing in Register.com v. Verio, posted at http://www.icann.org/registrars/register.com-verio/amicus-22sep00.htm.
(Footnote 20 return)
One such operation, .tv, testified to another House subcommittee that it provided a full, publicly accessible Whois. This is not the case, at least if the gTLD Whois service defined in the RAA is the measure. To give just one example, anyone seeking Whois information from .tv must first identify himself and register with the registry operator. This is a far cry from the unrestricted public access provided in .com.
(Footnote 21 return)
We also encourage ccTLDs either to adopt the UDRP as a non-judicial means for resolving domain name disputes within their registries, as some have already done, or else to adopt similar dispute resolution systems based on the UDRP but tailored to the needs of particular ccTLD registries. Such moves would also be consistent with the WIPO best practices document.