This is Part 2 of the ICANN History with the green paper consultation with Mr. Ira Magaziner. It is a Transcript of an open meeting held during APRICOT 98 on the 18th of February 1998, in Manila, Philippines (Part Two)
Record of discussions with Mr. Ira Magaziner with the APIA Board and members in an open meeting held during APRICOT 98 on the 18th of February 1998, in Manila, Philippines. Part 2.
Ms. Raveendran Greene – We were discussing with APIA Board and advisory just before you came in, why you were not looking at existing groups. Your paper refers to groups “to be created. The discussion then went on to look at whether we needed the creation of new groups.
Mr. Magaziner – We do not have an opinion on whether it should be existing groups or new groups. If existing groups have a consensus, then that is fine.
Ms. Raveendran Greene – Bill Manning had a further question of whether there will be criteria laid out on which you validated these groups to participate.
Mr. Manning- In your paper, on page 4 it talks about Directors, and in points three and four, you talk about membership organizations “to be created and that implies that existing organizations that perform those functions have been eliminated.
Mr. Magaziner- That was not the intention. You are right that it reads that way, but that is a mistake. That was not the intention. The hard thing to gain is legitimacy. Suppose existing organizations can fill that role that is easier. APNIC, ARIN, and RIPE do have that legitimacy and could fulfill these functions. The IETF does have that legitimacy on technical issues. We do not know if there are any user groups that do or not. But if there are that would be great as it would make this easier. It really is a question of what the community thinks. We do not intend to have any say about that.
Mr. Manning- How do you intend to recognize organizations? I could come up and present you with phony bona fides that I represent a zillion Internet users.
Mr. Magaziner – Yes, I think that what we are trying to do is for us not to make that decision. The Board will be constituted by a group of organizations that come together to constitute it. What would be broadly accepted as user representation and I think if any individual tried to do that on his own, the rest of the community will not feel comfortable with that. On the other extreme, John Postel had talked (and we had discussions about this over this week), talked about the possibility of taking some existing organizations, whether it is GIIC or IIC, that are international and at least for the first year as incorporates ask them to convene meetings regionally. That may be e.g. GIIC convening three meetings, one in Asia, one in Europe and one in North America, and invite any other user groups etc. to come, and in that first meeting be able to represent these regions a first incorporaters and then there would be an attempt how to make this a more regular process. That is one idea, although I do not know if it is the best idea.
Mr Greene- It might work, but try and find an organization other than GIIC. GIIC was one of the groups that said that the Internet was nothing and that the GII was everything. So within the Internet community, it is one of those groups from the Telco world.
Mr Magaziner- we do not have any opinion on this.
Mr Greene- yes, but all I am saying is that there are other forums.
Mr Magaziner- Yes. The only strong feeling we have, is not who should be the convenor, but who has the legitimacy. But we do have a strong feeling that we want representation from the not-profit user community as well as the commercial user community somehow. That is, if all users on this Board are companies, and we did not have libraries etc., that will be imbalanced. Other than that, no feelings about who this convenor should be. Last night, you raised the point of having tradeoff between getting this thing going off quickly, and having the perfect organization between the stakeholders and the users and the only thing we are doing is trying to get this thing going quickly, recognizing that it will not be perfect. At least getting something going the first year, and then take that year to set up a set of organizational relationships. I think that is what John is also looking for.
Mr Hicks- Is there a risk there, and you mentioned at one stage that the model of standards of developing organizations, they tend to exhibit a certain behavior in that they never evolve, they just grow. Is there a risk here that this will not evolve itself, people won’t evolve themselves out of a job.
Mr Magaziner- That will depend on how the by-laws are written. And the standards organizations, there is legal precedent to protect it legally but you can still setup a set of bylaws which created for example, a super majority capability to amend the stakeholder groups and so on, so that you build in the bylaws the requirement for review every two years or so, that looks at the stakeholder groups that are making up the Board and determines whether there are new stakeholder groups to be added, etc. That should be written into the bylaws of the new organization.
Mr Hicks- What was the logic behind the size of the Board.
Mr Magaziner- I wish I could say there was good logic, but ultimately if look at technical representation, the idea of having three from the regional numbering functions, and two from the protocol arena and then two or three from name registry, registrar communities, and then feeling should have equal number of users to people representing the technical functions, so that have balance between users and the providers of the services. That was the only logic. But that was something to be decided. Some felt should have a bigger Board, some others felt that this should be two different organizations and not one. Number registries are nervous of being part of the same organizations as the name functions, and there was some sentiment to having two separate organizations. We basically, recommend what we did because we felt it was a slightly better alternative than having two separate organizations, it is difficult enough to form one. Thought of balancing technical and users was a good idea. That was how we came up with that. But again, we are not wedded to that, if there are any other ideas.
Dr. Hur- Then regarding the start-up period, there seems to be a lot of decisions to be made that will affect the future policy or life of the corporation. One is identification or creation of member organizations representing the proper stakeholders, and the “objective criteria� to oversee the policies, and the “open process� ..all this if properly managed it will be all right, but if not managed properly it can get into other problems. What role of US government play in this process and that of other bodies?
Mr Magaziner- If we decided, and the consensus is to add some names, have to set up procurement process. That will be managed by IANA. One of the reasons that we published these comments as the Department of Commerce Rule, was because it would allow us to move faster in setting up the competition for the new registry of names. That would mean 30 days comment period could count as notice for proposal. John is going to put out some kind of bid for technical and accounting auditing operation, to prepare the groundwork for that with the University of Southern California. After the comment period, and we decide to add the names he will already prepare the bid for accounting specs for the accounting or auditing firm, and also have thought of specs for becoming a registry and registrar. He should be doing that now. Then after month period, we can begin that process. IANA would manage it.
On question of forming the new organization, there we would expect that the different organizations that are involved, would communicate with each other and would essentially designate an initial Board as is called for in the proposal. And with the assistance of the IANA, we would get some lawyers who would essentially draw up the documents and they will constitute the Board, not the US government. Obviously, they would be in communication with us, but basically that would be done by the membership organizations. We do not want it to be something that is a chartered corporation from the US government, that would be a mistake. Should be chartered by the membership groups. What we would recommend after the 30 day period, let’s say this continues and the not-profit is agreed upon, what we would then urge is that ARIN, APNIC, RIPE, IAB and whoever else, try to hold a meeting or designate people to hold a meeting and then perhaps designate even who will be their first Board members. And then that Board then hire the appropriate legal counsel, to begin drafting the corporation and that meanwhile, however we decide to get the user groups going, what we have set as a deadline is by the summer, these groups will be ready to actually form this corporation, so that it can come into existence by September.
Ms Raveendran Greene- I read from a mailing list that John is setting up an IANA transition Board, †an Advisory Team, is that related to the transition process that you talk about.
Mr Magaziner- Yes. I think he was looking for a group of people to broaden his own expertise, who could advise him on these different steps that need to betaken. I think that it is set up that people who will be part of that, have said that they will not be part of this new Board of the new organization.
Ms Raveendran Greene – so it is tied.
Mr Magaziner – yes. It basically there to help him do the steps.
Mr Wong – There is no one from this region in that group?
POC – Geoff Houston is in that group.
Mr Magaziner – that is something to take up with John. He communicated that to us and we thought that was a good idea.
Ms Raveendran Greene – What might be useful sometimes, if John is to constitute a group or do something, that there can be a way that there be joint communiqu or something, because from a personal point of view, you get the impression that there are two separate things going on, and fear that things are going in opposite directions.
Mr Magaziner- reality is that there were two different things going on, but I do not think that is the case now, We are talking very regularly and I think you can assume there is a common goal. There are certain things, such as the actual setting up of the policy paper, will essentially be under our direction, but the actual setting up of the structures and organizations will be under John Postel’s direction. But we will be discussing this frequently, so I do not think there will be a problem.
Mr Wong- a point of information, with the numbers registry in Asia APNIC, I understand that it is going through quite a bit if change itself with change if its Board, location, DG etc.
Mr Magaziner- Yes, but ARIN is also a new organization, that is still really forming so it is accurate to say those are themselves fragile organizations that we are now giving responsibility to on this Board, but still we thought that they were better organizations representing number interests than anything else, that we could think of. And because they are membership organization and they do give regional representation, so we thought it was still the best way to go.
Mr Jacobsen- What is the status of the Infrastructure fund, which is what was collected by NSI and if at all, how does it affect all of this?
Mr Magaziner- In our paper, we had put out a request that this money is there. We have received lots of ideas what to do with it, it should be used for the benefit of the Internet but how? Essentially we have put out a request for comments. In the meantime, a judge has ruled that the money may not be legitimately collected, that because there was not a vote of our Congress, and because the judge ruled that this was in fact a tax, and in our system a tax as to be voted by the Congress. The judge has now impounded the funds. That is being appealed and we do not know what the disposition will be. But it raises the issue again of why we need to take steps to have a better system, this is one judge and one case brought by one group, and all of a sudden 43 million dollars is compounded and times that by many times, that will how the Internet would look like in a couple of years time if we did not succeed in creating some better structure.
We had thought that some of this money can be used to set up an initial endowment for this new foundation, and we wanted to get opinions on this. Now it may not happen.
Mr Jacobsen- What is the ultimate bad thing that could happen? Will this be refunded to the tax payers? Actually it did not come from the tax payers.
Mr Magaziner-Yes, one possible situation is that the money would have to be refunded to those who had paid it and another resolution, would be by the time the lawyers fees are deducted there would not be much left and those who will have paid will get about 10cts to the dollar of what they paid. Administrative costs too high.
Ms Wang- I have a domain name registered and in the beginning when there was no money collected, it was very messy. If you wanted things changed, etc., there was no resources to do it and since they have started collecting money, having changes made, switching the domain server, or just paying the bill has been a dream. So, the money does have good uses it can be put to though.
Mr Magaziner- I think there are two separate issue, one is the actual charging of money by registries so that it can run a professional operation, and that is what you are speaking about. Probably everyone would agree that is appropriate. I think the problem that most people are addressing is 1) they believe that NSI is charging too much money for that- the amount of cost to run that professional outfit is much less, and NSI is making too much profits as a monopoly, and 2) and the $15 user charge that the government imposed for collecting this fund- a lot of people feel that it is not appropriate. So, we have said in this paper that we will stop this user charge April 1st 1998 no matter what, so NSI will have to reduce the charges by US$15. At least we are putting a stop to that charge. There is still the issue about what to do with the money that has been collected and part of the problem is that the US Congress was going to take part of that fund to be part of the NSF budget. Which will not necessarily be devoted to the Internet, which we do not like. That shows the danger of the current situation and now the court/judge has the money.
Dr. Hur- A question regarding the schedule and the new incorporated entity. It is to start as is mandated to start in September 1998.
Mr Magaziner–it is not mandated. We cannot mandate it, we hope it will happen.
Dr. Hur- Considering all the processes that need to be put in place first, to take into consideration all the comments that will be made, and in order to reflect proper regional representation and opinion from Europe and Asia Pacific, I personally think that that time frame might be too tight. For your reference to the APIA comments to the NOI, we have commented that even the current contract with NSI may be extended for the short term, in order to have a more prudent approach to these issues.
Mr Magaziner- It is a good point. We are extending the contract after the end of March, into September, which is built into the contract but we have received a lot of criticism from a lot of people in the Internet community, for saying that the US government may still have some policy role that could last as long as two years, although we hopefully won’t. And so, you may be right that it will take longer than September but we want to push it as fast as possible, because otherwise we are afraid that too many people will feel that the US government is trying to hold on to this.
Dr. Hur- yes, there is a fine line between those two approaches, and from my personal perspective, I think that in order to have proper regional representation, and to have feedback from different stakeholders to be reflected in the system, it may have to be extended.
Mr Magaziner- There are a number of corporations who have given us comments that agree with this, and they think it will take longer. There are others, and I think John Postel was one was of the opinion that it can happen quickly. Our position is not to try to make a decision about that. We will try to move quickly and it can be by September , and we can have a good organization we can all be happy. If it takes longer, then it will take longer and we will have to live with that. But the important thing is that people do work towards deadlines. It is natural inclination and so we try to move as quickly as we can.
Ms Raveendran Greene – The concern of time point. I have a similar concern, but not so much in period of achieving it, but in terms of process. While Bill and Patrick and others may get to see you often and have a say in the process, right now there is no clear process on how APIA can be involved.
Mr. Magaziner – Let me be clear on this. That is one good thing about the Internet. People e-mail me and I answer. When I am on road, cannot access e-mail, but once I get back I answer my e-mail. I think I can be in touch with you as with anybody in the US. I will do that.
Ms Raveendran Greene- another concern raised by others here is from a reality check situation, you are the Advisor to the US president. The paper is coming from NTIA and this being a US government initiative, you have to please your clients, i.e. citizenry that you are accountable to. We are not part of this interest group or the clientele that the US government normally takes into account, therefore there is a concern about how much of our views and how much of our concerns, can the US government take into account, just from the perspective that it may not be palatable to their constituents.
Mr Magaziner- I think that is right and I think the only answer that I can give you about that is that what that means, is that in the transition state, this will not be as universally representative a process in equal way as perhaps one would like it to be, because even if we tried to make it like that, it is quite clear that if the US Congress makes a big noise about something, it has a different impact on us than if the Japanese Diet did that on us. We cannot deny that. That is reality. The only possible way to answer you, which is our honest intention, is that what we are doing is setting the new structure. The new structure can be made representative, so that it does not have that type of bias. So at least we are trying to do is create something, that won’t have that bias which is built into the current situation. And I think we have to ask your indulgence, because it is based on history that we have the role we have now, and we are trying to give it up. We are trying to create something that is more broadly representative. But in the process to get there, it is probably true that the US government interest means that it won’t be as representative as it should, but I am very sincere in my willingness to meet and discuss. It is an indication that we want to take this seriously. Even if completely international in outlook, US Congress can pass a resolution and prevent us from doing something, so we have to be sensitive to this.
Ms Raveendran Greene- That was what I was driving at.
Mr Magaziner- Because if the way this is going legally, they can do that.
Ms Raveendran Greene – You are sort of confined to coming with a solution which is palatable within the existing structure.
Mr Magaziner- Yes. But we are trying to do it in a way that will be acceptable to the world. I think the easiest way is to say, we limit what we do in this period, then we create an organization that is more broadly representative. That organization in the next years, will coordinate these things to get it more representative, and fact that for 6months to year we have disproportionate influence becomes forgotten. That is the only way we can answer this concern. It is a legitimate concern. The Internet is relatively new as a commercial medium, and could be that in the first years it has had an organization in favor of the US, true with the IETF etc., but goal to shift away and evolve. Initial period will be forgotten.
Mr Wong- .us and suggestions to non-charging. You mentioned as of April there will be user charge will disappear, yet you make the argument that cannot do something because it is already history with respect to .com. We are also hearing that Internet has this potential, surely potential is far greater than the current history that it would be worthwhile restructuring what is already there.
Mr Magaziner- There is always a balance. Getting rid of the user fee, that can be done without consequence to anybody, in fact it is beneficial to those being charged and it does not create anything negative. The .com problem, you have a couple of million users now, where it is not just have business cards printed but there are linkages all over the Internet defining them to that name and address. And so there is a fairly major transformation if we take all that away.
Mr Wong- One of the beauties of the Internet is that it can change so quickly. Although hypertext links, or databases, etc. they are not cast in stone like buildings, they are just data and that can change.
Question-is I am not sure we cannot change it.
Mr Magaziner- Good question.
Mr Wong- What we are trying to do at least in spirit, is to create an organization that can find that freedom to do this.
Mr Magaziner- the only thing I can say to you is that the political realities that we are operating under may make that impossible, This new organization when it is formed, and technology as it evolves, whether there is some ways to can break away some of the irrational aspects of the past, is a question. I am not a technically proficient person myself, but in talking to people who are technically knowledgeable, I understand that there are a number aspects in which the Internet does not operate as technically ideally as it could because of certain historical vestiges, and I would put this in that category. The question would be, at some point in each of those areas, the technology will move and the decision making will move, where people would say “now is time to take a big step� and change things, and I think that should be up to this new organization. I think if we in our interim role, were to say OK .com has to change, we could not do this.
Mr Wong- This goes back to the contradiction that we in the understanding on how to set up this new organization. We also have the understanding that at the same time, there is a seeding of a potentially new structure, at the same time or prior to this because f the change to the funding role. Question- if new structure and TLDs does not work out for any reason, you will also have seeded the false hopes of the new organizations set up. It will be clearer from a responsibility point of view, not to introduce the TLDs. Because that structure may not be the way to go, and then we will not be better off with the .com scenario.
Mr Magaziner- It is a good point. Distinction I would draw, not introducing something new is something that could be done politically. Rolling back something that already exist would be difficult. I think you make a good point, and I would like to see comments we get during the next month. If there is a significant or a majority of people and groups that say, do not add the names but get new organization formed first, and end NSI monopoly and let new organization decide next steps….if that comes through that is quite easy for us. If CORE and others, want to add names if they become majority, then have to do that. Corporate users and commercial users that we have talked to would be quite happy with the solution of not adding the names, because they don’t want too many names for trademark reasons. If a significant portion of the Internet community did not want any new names added, that may well be a majority.
Ms Wang- You are going to move forward based on the feedback you are going to get over the next month or two, the one area is that are we doing enough to get the responses from people outside the early adopters. Now we have 100 million users, thinking in terms of this will be the communication mode for society and people like my mother, how will it affect her, and how will you get her input.
Mr Magaziner- At any point that you want to make a change, there will always going to be some group that is not yet involved. So next year it may be 20 million people involved, five years from now it may be a billion people and so on. I think the best way to handle that, you cannot fore people to be interested in something they are not interested in this now. Best answer is that the new organization has to be flexible enough and set up to be able to evolve, and also set up in a way that is transparent and reaches out to new populations that become interested in this. I do not think you can set that up now. Cannot force everyone in the world to be interested in domain names. Key is to have this new organization to be flexible, that is one reason why we do not think it should be a governmental organization. Governmental organizations are much too inflexible, we think a private organization has a better opportunity to be flexible and change itself. My father would fall asleep in ten seconds if I start talking about domain names. In most case, if you have children under fifteen, they understand issues better than we do, and so they will be the future. They have to have a chance to think this over when it comes to their turn.
Mr Manning- DNS historically has changed. TLD has been withdrawn. TLDs have been added. There has been a precedent for adding and removing. There is also part of naming and numbering construct, I don’t ever expect my mother to use the Internet the way I use the Internet. I believe in part of what we will see in the future, is intelligent devises, so growth in number of IP speakers really becomes the environment you are in. Who controls those. If you want to empower Internet users, talk about empowering your toaster or your light switches, because those are the places where they are going to use IP addresses, not just the people. Entire segments of industry that currently do not have any clue that this is going to fall on them in another five years. Whoever ends up in this registry functions will have to be aware that they are going to end up with another paradigm shift.
Mr Magaziner- I agree. That is why some people argue that they want some competition in this, because there is going to be dramatic changes and innovations is necessary. Five years from now, what is a registry and what is TLDs may be very different. There may be operating directory services that can speak to each other instead of DNS, I had lunch with Bob Kahn discussing this and he went into lecture about how changes will take place..that names will not be issue but how directory and groups of directories can works. So the organization has to be flexible enough to change with that future. Take it one step at a time.
Mr Hicks- Another constituency that is not being represented at the moment, is the developing countries. If we set rules now, we can rule them out of the communications means of the future. Crucial issue.
Mr Magaziner- Agree, This will have to evolve. Eventually there should be number registries formed in parts of the world where they don’t exist today. Again, difficult, cannot force people to take part before they are ready to take part in it. Just have to create something that is flexible enough, so that when they are ready to move in they can.
Mr Greene- I need to leave and I just want to make a point, and that relates to the need to consult and work with other groups. It is learning the lesson from the IAHC, which a lot of people doesn’t realize was the biggest mistake is that IAHC wants to include more people in, but they were naive of the interest of other groups. So IAHC in the Internet community where you have a core culture of rough consensus, working code, peer review and a back-up plan, in case a protocol does not work, was naive when they brought in the ITU community, the WIPO community, the trademark community. And now some of the biggest things that process is digging out of is that the individuals that were brought in from those areas, did not have peer review or consensus of their own communities, and you did not have those particular areas of that process properly reviewed where in the technical community in the Internet world, you have a good process of technical review so it is just something to be mindful of. When you bring in others, within the Internet community there is this long term tradition of making sure you have something that works, making sure you have rough consensus, make sure you have a backup plans, make sure peer review at multiple stages, and if the other groups in the process do not have that, it will cause more conflict in the future. For example, in the WIPO process there are a lot of people in the world and in the ITU world, saying what is going on, you don’t have our consensus what are you doing here.
Mr Magaziner- That is a very good point.
POC- I agree that that is a point to be taken. One thing that they did though from the beginning, was they did ask the Director Generals for an official representative of ITU and WIPO, and those individuals were who the Director Generals did assign. But what you see is that could not work under those circumstances, but those organizations themselves could not handle that process in the issues.
Mr Greene- And the Internet community did not know that at the time.
POC- That may have been the point on either side, but the ITU and WIPO members actually did agree on appointing official members.
Mr Magaziner- Yes and no, because there were number of member governments, including the US government that did not agree to what the ITU did. Part of the problem is that, a typical decision in the ITU or WIPO takes a long time, and by nature of the inter-governmental organization that is what is required in the way things work politically. This is why in our opinion you have to keep things away from inter-governmental organizations. Flexibility which is needed for this, cannot work for ten years to make a decisions. Anyway, I guess the question of new stakeholders, we are certainly open to which other stakeholder groups should be added now, and we have no fixed view about that. But I think the most important thing is that none of us can anticipate, who the stakeholder groups will be five years from now, therefore should create a flexible enough organization with bylaws which are flexible enough to allow it to evolve. That will be key, so that it can accommodate whatever stakeholder organizations that come into being.
Mr Wong- For your information, there is also AFRONIC as far as Africa is concerned.
POC- Yes, there are two more NICs created one for Africa and one for South America.
Mr Aizu- Referring to what I said yesterday, the government and private sector not-for-profit distinction and working principle, is quite different by region, by country and by culture. In one sense I agree that any government should have less laws to allow the Internet to grow but realistically speaking, now that the US government is getting out of this business especially the number allocations business legally, but there may be other governments who will try to get more space or voices in Internet Governance. It is an irony that US government need a minimal role to ensure longer term, just leaving to private sector may not work.
Mr Magaziner- I think we should move out of it, but I think if another government tried to move into it I think it could be appropriate for us to fight back when that happens. But I don’t think that that should be used as justification for us to stay in it. That would be a mistake.
Ms Raveendran Greene- What Izumi is trying to drive at is that while, you are looking at it from a solution in a culture, where this is palatable. The problems is that even APIA and APNIC, has to deal with is we are in a region where governments are involved. Unless you are sanctioned or recognized by governments, you will not be effective. I had an incident with David Conrad, where regionally everyone knows and respects the DG of APNIC, but when I took him into a regulatory body to try and meet their DG, we don’t get to meet him and we get shoved to some staff member who goes, who are you and what are you doing here? Only after going through efforts to recognize APNIC, that APNIC and all NICs could function more smoothly.
Mr Magaziner- That is a good point. One of the things we discussed with the EU and Japanese government, when new organization forms we the US government will recognize its authority and the EU we suggested may issue a statement to recognize it, and the Japanese and so on. So that you have some sort of formal process where the governments would have recognized that this new body has this authority. That would then limit the way in which the governments would intervene. That is similar to what we are doing in other areas, for example, by trying to get an agreement in WTO among governments that they will put no tariffs or customs duties on electronic transmissions, you are getting governments not to act and to put that into an agreement., Similarly, we can do something here where we get the governments to agree that there are not going to try and intervene here, but now that they have recognized this NGO to do this. That might be an approach to take to help solidify the legitimacy of this group.
Ms Raveendran Greene – What is the process to get governments to agree to this?
Mr Magaziner- we are discussing with them now. Once the new organizations forms, and the US government still have some policy oversight, we still have the root server authority and so on, we would then declare our intention to turn over our authority officially to this new organization. We would then approach other governments of the world and say we will be doing this, we would like your assurances as well that you will recognize this new body. That might be a process that could work. Then we phase our getting out at the same time that we get the assurances from the other governments.
Mr Aizu- Wholly or will you reserve some minimal involvement?
Mr Magaziner- Ultimately, to the standards of any other user, with no authority.
Mr Aizu- Sounds ideal, but I hope it works.
Mr Magaziner- If other governments agree, that we get out and recognize the authority of this new organization. For example, people in the EU who work on this issue has said to us, OK agree that there should not be government representatives in this new organization, major concern is to make sure it is international so there are Europeans involved, and we say fine. But then if we say, we are ready now to turn over the root server to this new organization, will you officially recognize this new organization. Then I think if they did that, then it would be safe for us to get out of it, at least that is the idea.
Question from audience (Japan)- How can you be so sure that US Trademark law will be applicable to root servers.
Mr Magaziner- Now there are international agreements on trademark laws and sometimes they do not work very well, but they exist. As someone said yesterday, we cannot make new trademark law with the Internet, trademark law has been under discussion do year now. What we have to do is try to recognize existing trademark law as it exist in different countries and as it exist in international agreements. I do not think we can do more than that.
Question from the audience (Japan) – Is there no trademark law operational over the .com domain?
Mr Magaziner- That is a question right now. The courts in the US are still considering a number of issues, and that is the same in a number of countries, now in Japan. A couple in the Philippines and some in Europe, so I think courts systems are looking at it now.
Question from audience (Japan)- A more serious problem of trademark law is that DNS is not upper and lower case sensitive, but trademark in the United States is.
Mr Magaziner- That is a good question, a good point.
Question from audience (Japan)- That is one reason why US trademark law is not applicable to .com domain.
Mr Magaziner- To say that it is not applicable is for the courts to decide.
Mr Wong- One of the things we are hearing is that the domain name system is a system that we can map and is more natural than remembering numbers, we also have a system whereby they are resisting the jurisdiction which impacts them. Some of us is not convinced that using existing domain names is the way to go. For example, because of character set issues, or iconic identifiable, if we had McDonalds and Hamburg, that we can navigate through Internet trademark issues from icons is far greater issue than names. We will need to legal jurisdictions no matter what we do.
Mr Magaziner- I think that legal jurisdictions will map themselves through court cases.
Mr Wong- What I am saying is that there needs to be someway in which that can be assisted. The simple logical way would be that legal jurisdictions would have an area which they are responsible, and at some point they will also need to be simplified.
Mr Magaziner- Problem you see is that even when you have country codes, if I have IBM, I will claim under international trademark laws that ibm.jp etc. are not allowed. But there will be people not as well known as IBM that will claim that, and that will be determined by the courts.
Mr Wong- In that country.
Mr Magaziner- Some will claim under global trademark law that they have that right, and others will go country by country. Those will be determined by the local courts in those countries, but our goal is to minimize the percentage of cases where that happens. By having the alternative dispute resolution with an organized set of rules, so that you minimize that percentage of cases.
Mr Wong- If I was IBM in Hong Kong, I certainly would not be foolish, as I have existing ways to judge whether or not I would be successful in challenging IBM in Hong Kong, the externals of the data to use that to base my decision on. The point is with domain names, someone may be known by more than one name, which is why that goes to say that even if I am known by .com now, if I come to be known as .com.us, I can still be found.
Mr Magaziner- Yes, that will get to the point you made before.
Ms Raveendran Greene-With some extent I feel a little more comfortable with the system that allows more domain names to come about under national law, and then some determination under WIPO or WTO rules that I have an internationally known mark and then coming and challenging it. I am more uncomfortable with IAHC ACP process, that made it easy for McDonalds to go to one process, declare that they are internationally known and then wipe out all domain names in that globally and that to me, reduces drastically the scalability of domain names. Not to mention that we have developing countries coming on board, they are going to be limited by these Anglo-Saxon ways of naming domain names. So I am more comfortable with some level of clarity and then leaving it up to the courts in different countries or under different treaties to decide it. The other problem I had with the IAHC process was the treaties that currently exist like WIPO and WIPO, expects infringement to be proved, I have right and I have damage. Whereas the IAHC process did not have that, all you needed was to show that you had a right, and they immediately suspended it and that was dangerous.
POC- There were suggestion to use if had international mark in more than 35 countries it will be treated as international trademark and could suspend, but that provision because of input from Asia Pacific countries was removed. Another thing in latter version, ability to challenge such a general exclusion was included, which means can challenge someone with such a general exclusion. Problem is with international disputes over trademarks, because it has not been solved even after all these years of discussion. That is one of the strongest arguments we received in the IAHC and POC process, not to add more TLDs, even though have will have challenges under the nTLDs, dispute itself and challenge itself will be bound to that country code, which is a known environment for lawyers.
Ms Raveendran Greene- Country registries are taking these steps, e.g. in Singapore, to actually tell registrants not to expect or assume your domain name to be a trademark,
Mr Magaziner- But commercial users want to use it as a trademark.
Question from audience (Singapore)- What should happens in each TLD and SLD registry, is that when you get the governments to accept this new organization, you should also get a statement from each government saying that TLDs should not be expected to be trademarks. Otherwise you are going to end up with .ibm for all over the world, and which law are you going to apply to it.
Mr Magaziner- I do not think the governments will ever succeed to do that. The commercial interest and the trademark interests are very strong. And would not accept that.
Ms Raveendran Greene- Agree that may not get them to say that, but what I am saying is that it should not be written in a way that puts in a presumption that domain names equals to trademarks. It should be something that is proven through the normal process.
Mr Hicks- Is that not an area of competition, if you put the jurisdiction around the registries and registrars. Then area of competition just as in taxation laws, company laws or even naming ships, if you want your registration in a certain name and you register as a Liberian registry, it has certain connotation in what it means compared to London. Potential competition between the jurisdictions.
Mr Magaziner- We have already seen some smaller nations and smaller areas, trying to market TLDs which are creative.
Mr Hicks- That is fine. Then it has a certain reputation to your name.
Mr Magaziner- Could argue that if let this go completely, so that there are people adding names until it is so confusing, eventually it will disappear more quickly. It will become irrelevant. We may be having this argument about how to regulate the horseshoe industry or something, and it goes away because people stop using it. There could be different system directories that grow from it, etc. But, the best we can do with the Internet, if very good can see couple of months down the road, cannot see couple years down the road, therefore the best you can do to take a step to solve the problem but maintain your flexibility and your ability to change or move and right now, we know that the current structure that we have does not work, so we have to change the structure and hope we create something flexible.
Question from audience (Japan)- Why not just use ISOC or ITU?
Mr Magaziner- Because that will presume that the stakeholders on the Internet would accept ISOC or the ITU, or WIPO as appropriate bodies. And at least from the comments I have received in the open process we have had, I think there are very few people who feel comfortable with the ITU, and perhaps a little more with WIPO. For ISOC, more comfort with that. But even people on the ISOC Board, they feel that it would be a mistake for ISOC to take such a broad role. In theory nothing wrong with what you say, except that the stakeholder groups that you name do not have consensus to do that.
Question from audience (Japan)- MOU was drafted, two from IANA which according to yourself was acting with the authority of the US government, so US government was involved in the development of MOU according to yourself. How can you deny this now?
Mr Magaziner- The US government never accepted the legal authority of the IAHC or IANA. Someone from NSF also involved in the IAHC process, but then they left the process so there was no representation made by the US government, In fact on the contrary, the representation we made was that we were not prepared to accept that process, we did not say we would not if it evolved but we also said at that time that it was not.
Question from audience (Japan)- But you try to convince that IANA is under US government.
Mr Magaziner- I am not trying to convince you, I am just saying that it is. You should ask John Postel if he believes it. IANA under US government. There is still a contract with DARPA, which right now is extending to next September.
Janet Stenzel (PECC)- PECC, my organization works with APEC all the time, we are coming up to our Brunei meeting. Outcome of that meeting will go to the TEL Ministers in June, an it would be on Electronic Commerce in response to last November request that they create a program on E-commerce. When listening to discussion
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