DNS: Possible com.au policy changes & related issues

DNS: Possible com.au policy changes & related issues

From: Robert Elz <kre§munnari.OZ.AU>
Date: Tue, 31 Dec 1996 20:18:24 +1100
I have been hardly able to believe some of the remarks that
have been sent following Peter Gerrand's posting (and in it)
of Dec 20.

One quite reasonable question from from Geoff Huston ...

    Precisely what are you trying to protect, and from whom?

which resulted in the response ...

    As I see the COM.AU Bureau's primary role as being to help its

which raises an issue so important in the way that all this
is being done that I can't help but break my usual silence on
these issues and make some comments.

That should be, if anything, a minor, very minor, role of a DNS
registry (domain name administrator - whatever you like to call it).

The primary responsibility of these people should be to protect
the DNS, conserve its resources, and see that it is properly
managed and run.   That is, acting in the best interests of the
DNS itself, and of the Internet as a whole, is unquestionably the
number one priority (or should be) of anyone managing a portion of
the DNS tree.

Yes, this extends into parts of the tree allocated to individual
organisations, and even departments within organisations, etc,
though at this level the global impact tends to be fairly limited,
and the responsibilities less - though even at that level names
allocated should be in accordance with all relevant syntax
requirements (eg: if mail is expected, then '_' is not a legal
character - nor is it for many other uses), and all servers should
be checked to be correctly running, or corrected, etc.

At the higher levels of the tree (closer to the - inverted - root)
the responsibility grows however.  There it is, and must be, as
there is no-one else, the responsibility of the administrators of
the various domains to see that the DNS is kept in a state where
it will still be useful in 50 or 100 years (or more).  That is,
where applicants then can still obtain domain names that are useable
and make sense in much the same way as then can now.

The domain administrators should see themselves as more akin to
bodies like the forestry commissions, and river water authorities,
etc, with an overriding responsibility to the resource they control,
and then within that the responsibility to give even, fair, and
balanced service to the users of the resource they control, within
the constraints imposed by the needs for conservation.

On Peter's proposed changes ...

  For the 17 January meeting of the DNS Forum in Sydney, ...

I think Jan 17 is much too soon to decide upon any
of this, there needs to be more (outside the holiday period)
discussion, and it also needs to be determined that the DNS
Forum is indeed the appropriate (widely representative) body
to be making these kinds of decisions.  That certainly is not
yet certain, and may not be Jan 17 - when the cast of attendees
is known that may be better able to be determined.

Then on specifics...

  A1: that Rule 5, that excludes any word 'that is a common English
  dictionary word, such as "infinity"', be amended to except (i.e. to
  allow to be registered) common words that are distinctive words within
  the registered company names or registered business names or trademarks
  belonging to the applicant organisation. In each case the company name
  or business name or trademark must be registered in Australia.

First, totally forget trademarks.   Domain names identify the
organisations (or individuals) to whom they are assigned. 
Trademarks are labels for products (in almost all cases, in the
others they're almost always graphic marks of one kind or another
and not even vaguelly suitable as a domain name - eg: the Macdonalds
golden arches), or they are also organisation names, and the
trademark status is irrelevant.

Second, while I believe a change in this area might be a good idea,
I would start (and probably end) with a much smaller change, and
allow the rule to be ignored in the one case where a company name
is Foo P/L (or Foo Ltd, etc).  That is, such a company could register
foo.com.au regardless of whether foo is a common word.   This is
the one really hard case that the current rule has exposed, and
where I would agree that a change should be made.   Otherwise
deciding what is a "distinctive" word within the company name,
etc, seems like another rat hole.

Then as for the rationale....

  The argument for this change is that (i) too may exceptions to the
  current rule were made under a previous DNA regime for it to be fair to
  continue to apply it to new applicants,

This is so absurd as to be barely worthy of comment.   What it
is saying is that the policy can never be made more strict - ever -
as there would be many previous people who had names granted under
the easier rules.   This would be a ridiculous position to take.

   (ii) if a company has
   already exercised initiative and precedence in protecting a common word
   as part of its company/business name or trademark, then it should be
   entitled to use that word as its third level domain name.

I don't see how this applies.   If my company name is "National
Australia Bank" (Ltd or something probably, or perhaps not as
they're a bank) exactly how have they done anything to protect any
of the three words.  Is "national" protected from National Car
Rentals?   Or half a dozen other "national" companies (National
Mutual, etc).   "Australia" ???  Really!   "Bank" - every bank has
"bank" in its name.   How could this "protection" argument possibly
reasonably apply in this or any other case.

Of course, if a company name were just "National Ltd" then I could
see the case, and there, as I said, I think I would allow them

  A2: that Rule 6, that excludes any 'generic English dictionary word
  indicating a class or type, such as "photography"', be deleted

I have no real problem with that one, the rule has never really been
used anyway.

   A3: that Rule 7, that excludes any word 'that is not an unqualified
   Australian place name such as "Melbourne"', be made more precise, by
   only excluding those Australian place names

Since this is a rule you invented for yourselves anyway, and which
in general I'm not sure belongs, I certainly don't mind it being
more precise.

   B. That to encourage fair competition between the DN Administrators for
   COM.AU, NET.AU and BIZ.AU, that the General (Naming) Policies under
   which they operate be identical,

That's silly - the only rational reason for having multiple
different domain names is if they have different policies.
Otherwise they may as well all be the same domain.

There has been one major other issue that this discussion has
raised, which was introduced by George Michaelson, and to which
Geoff Huston replied....

   I'm sorry, but I will ask this question. WHY? Why it is necessary to exclude
   speculative investment in generic names? Why is it necessary to exclude
   trading in names? Is there a sound technical reason? Is there a sound
   public policy reason? What exactly is the the evil problem which this is attempting
   to avoid?

which is an argument I could hardly believe.   This "prove you
are right I win" style is appropriate when it comes from the
defence side in a criminal courtroom, but is generally only
otherwise seen in kindergarten playgrounds.   The whole thing could
just as easily be turned around.   WHY?   Why is it necessary to
allow speculative investment in generic names?  Why is it necessary to 
encourage/permit trading in names?  Is there a sound technical reason?
Is there a sound public policy reason?   What exactly is the the evil problem
which this is attempting to supplant?

As I indicated above, the primary responsibility of any higher
level domain name administrator should be to preserve, conserve,
and rationally manage the domain name space.  To do so, policies
are a requirement.   They exist in other domains - last I heard
secondary schools weren't allowed to register names in edu.au, only
in <state>.edu.au (for example).   That's an entirely rational
policy - but would be meaningless if I (representing the university)
could simply go and register an arbitrary edu.au name, and then
sell it to one of the wealthier private secondary schools that
desired a name in edu.au rather than vic.edu.au (or whatever).
(The university is always looking for new money making ventures,
perhaps this is something for them to look into?)

Or is it claimed that com.au is somehow special, and while
policies are appropriate for other domains they are, for some
magic reason, inappropriate there?   If so, I think I'd need to
see a justification.   Nothing leaps out and strikes me.

Further, a policy free zone seems to pretty much be what .COM
has turned into, and hardly anyone believes that .COM is a
shining example of what we should be aiming towards.

Before anyone jumps to the conclusion that I'm blind, and don't
know that name trading both can happen already, and does - yes,
I know that.   However, currently either the name remains with the
original organisation technically (which impacts under current
rules on the possibilities of them getting another name, if they
have sold away the rights to the one they have), or the way the
trade is accomplished is for the first organisation to relinquish
the name, and the second (buyer) to then apply for it.   That's
fine, as all relevant policies can then be applied, the buyer simply
needs to be aware that there is no guarantee that the name requested
will be approved (but if they read the policy closely, they will, or
should, be able to work it out simply enough).

More recently Geoff Huston seems to have suggested a policy whose
prime reason is to keep the registering authority out of the
legal system.   If, somehow, legislative protection were to be
granted (not that I believe it is really needed) then whatever
constraints the relevant legislature requires in order to get
that protection would be worthy of careful consideration.

Other than this (which seems neither necessary nor likely to me)
attempts to keep the registry, administrators, etc, out of court
by adding more and more policy constraints are hopeless.  None of
that will stop someone suing.   The only thing that is going to
do that are some cases where the litigant loses, and others then
decide that that kind of litigation isn't worth the costs.
As long as the policies adopted by the administrator/registry are
clearly stated, and fair, and the administrator takes no active
steps to do any more than register names that parties claim they
have the rights to (in particular, never attempts to select
amongst competing claims to a name, or to decide who has the best
right to one), the chances are incredibly small that any damages
will ever be awarded against the administrator.   Requiring
that the domain name be related to the organisation name (as
registered by someone else) can only help here.   That's a policy
of course (though not primarily aimed at avoiding litigation).

Adding delays can't help without legislative backing.   No-one is
required to go look at where prospective names are being advertised
to see if one they believe they "own" (in some sense) is being
requested by someone else, so that they don't object means nothing.
If the name is registered, and later they discover it, they can
still sue, just as they could have had there been no delay.  I
don't believe they'd be effective against the registry/admin for
anything more than an order to transfer the name.

In the most recent message Geoff asserts ...

  - a party which does not choose to act during the notification weakens
    any subsequent case it may case to launch on the basis that
    it did not act to protect its intellectual property at the time.

which I simply cannot believe.   For this to be true there would
have to be implied notice (or actual notice) to the party that chose
not to act.   Actual notice would be a simple case, to achieve
implied notice you would have to somehow make it mandatory for
people and organisations to go monitor this list of proposed names,
and legislation excepted, I have no idea how that would be
achievable (several dozen years of common use might just do it, but
I doubt anyone wants to wait that long).

That arguments that damage would be reduced in the cases where
someone does object within the delay period are good ones, but given
the actual number of disputes we seem to be having (almost none)
I really can't see the costs of the delays being justified to avoid
this minor issue.  Real $ damages are only likely in cases where
the party that registered the name is deliberately acting so as
to infringe someone else's name (and only against them), and in
that case, real $ damages are almost certainly deserved.

Finally, this scheme seems to be set out to encourage disputes.
A simple "first come" policy (either with or without other policies)
will generally result in the second applicant simply determining that
the name they want is taken, the person who has taken it has as
much right to it as they do, and going on to another choice.  Legal
disputes are likely only when there is genuine infringement of some
right they have.   (Ignore what is going on in .COM here, which is
the result of the InterNIC's absurd policy to avoid itself being
sued).   On the other hand, a "notify and wait" seems to encourage
everyone and anyone who believes that they have any right to a
name to object, just in case.  Clearly the administrator (registry)
isn't going to attempt to decide the issue, so you're going to have
lots and lots of arbitration or legal battles for almost no useful
purpose whatever.

To take a concrete example, if under this proposed policy,
the National Bank applied for national.com.au and that met the
com.au policies (whatever they are, if any) then National Car
Rentals, National Mutual (etc) would all probably object, just
on principle, or as a conservative safety measure.  How anyone
would decide which has the better right to "national" baffles
me, but that would never be my problem, so I don't suppose it matters.
Under a first come policy, the bank people get the name registered
as they asked first (and met relevant policies, by assumption
here), when the car rental people (etc) see the name is taken they
look and see that yes, National Bank have a reasonable right to use
"national", they're not infringing on our rights to the name as a
domain name any more than they are in any other walk of life, so
there is no point at all objecting or litigating.

I think this plan can be abandoned without a lot of anguish.

Received on Tue Dec 31 1996 - 20:57:03 UTC

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