Some Domain Name News

Every now and again I still dabble in DNS. Two recent developments are worthy of note here. First, the Fourth Circuit reached the right decision in the fight over the jerryfalwell.com website. After nearly ten years of bad decisions by ignorant judges, it is good to see some common sense coming into play. Too bad it is too late to help my former comrade in arms Mike Doughney and his Peta.Org website.

Second item makes me laugh and cry at the same time. Turns out U.S. domination of ICANN is o.k. as long as the US works to keep pornography out of the DNS. Turns out love (of a sort) will bring us together . . . .

First, the Jerry Falwell.com case. As the cited article points out, Chris Lamparello uses the domain name falwell.com to criticize Falwell’s position on homosexuality. Falwell won a district court injunction against Lamperello requiring Lamperello to stop using falwell.com because it infringed on Jerry Falwell’s trademark. Much to everyone’s surprise, the Fourth Circuit Court of Appeals reversed. The court found that Lamperello’s site did not infringe on Falwell.

The opinion was a fairly strong win for gripe cites, which the court noted have recently won some good victories in Ninth and Sixth Circuits. The court found that the website in question made clear that it was not affiliated with Falwell in any way, so that no confusion was possible. The court also expressed skepticism about “initial interest confusion” and criticized two very bad cases from the early days of 1998.

“Initial interest confusion” works like this — I use someone else’s trademark to attract your attention, then I sell you my competing product. While not classic infringement, since I have not decieved you into thinking my product _is_ the other person’s product, I have stolen business from the mark holder by using his or her mark.

This doctrine had little currency before the proliferation of the Internet. It was seized upon by a passle of ignorant judges early on who (a) knew they hated the idea that someone other than the commercial mark holder had registered “their” domain name, but (b) couldn’t make out a case for infringement, since just registering a domain name and having it lead to radically different content wasn’t infringement.

So judges came up with this idea that if I, dumb head internet user, typed www.panavision.com and came upon a picture of Pana, Il. instead of the company Panavision, I would become so frustrated with the Internet I would never use it, depriving Panavision of the commercial benefit of my visit. Or so said the Ninth Circuit in Panavision v. Toepen back in the 1990s.

Time goes on and judges eventually catch up with reality. While initial interest confusion might make sense in the context of fungible products, it doesn’t make sense anymore. The _Falwell_ court was critical of early cases such as “Jews for Jesus v. Brodsky,” which found initial interest confusion when someone set up a webpage at jewsforjesus.org that proclaimed “Jews Cannot Be For Jesus! For information about real Judaism, click here” and linking to a website for a traditional Jewish organization. (Jews for Jesus also invented the idea that if your site is non-commercial but links to someone else’s site that encourages a commercial transaction, your use of the website is “in comemrce.”)

I’m happy with result but bitter that it took so long and did not come fast enough to help Mike Doughney. In 1996, Doughney registered Peta.org and set up a Website called “People Eating Tasty Animals” which criticized PETA and linked to all manner of leather goods, hunting, medical research, etc. sites. PETA invoked the old Network Solutions trademark dispute policy and put the site on hold. Doughney responded by creating the Domain Name Rights Coalition which advocated on DNS stuff (and was how I got invovled). peta.org sat on hold for several years until Congress passed the Anti-cybersquatting and Consumer Protection Act. Then PETA sued under ACPA and won in the 4th Cir.

As someone invovled in that case, my own highly partisan view was that Doughney got a raw deal. The district court, and then the Court on Appeal, essentially manufactured its own set of facts to justify finding for PETA. For example, the court observed that Doughney had registers “60 domain names” and was therefore a serial cybersquatter. Actual, Doughney was an early internet entrepreneur who helped found Digex and later got involved in cyberadvocacy. he therefore had a number of potential business names and cyber advocacy names registered. The court also laid great stress on a quote from a news story that PETA had made no attempt to settle with him and they were free to “make him an offer.” “Aha,” said the court, “clear proof he was trying to extort money from PETA.” Given that the record showed that Doughney _never_ solicited any offers from PETA or any requests for money, this is an awful lot to lay on one casual press quote from 1996.

Of course, your choice of target also matters. The ACLU had no interest in defending Doughney’s right to lampoon PETA (I recall the efforts to get them to come in as amici), but was all over sticking it to Falwell. The _Falwell_ court, in its turn, finds itself dismissing some of the statements from PETA v. Doughney with some unconvincing handwaving.

So as I say, I’m glad common sense prevailed, and that the trend is positive, but I’m still bitter that it didn’t help Doughney and that a man who financed the first efforts to preserve the right to speak ill of trademark holders on the Internet will be remembered as a cybersquatter instead.

Meanwhile, back in ICANN land, strange things are brewing. For them what follow DNS politics, you may know that the international community has been a might peeved over U.S. control of the DNS via its right to review ICANN decisions and right to re-assign the A Root from ICANN if it wants. For about two years now, the World Summit on Information Society (WSIS) has been working on this issue. The Working Group on Internet Governance (WGIG) sharply criticized continued U.S. dominance. The U.S. replied in fairly trypical fashion. NTIA Director Michael Ghallagher announced two weeks before the July ICANN meeting that the U.S. had no intention of giving up its control over the Internet and that while WSIS was a greta place to yack, no one should take it seriously. (I’m paraphrasing a bit).

So it looked like we were due for heap big fight when the WSIS “Prepcom” meeting happens next month and when WSIS convense for its next big meeting in Tunisia. But, oddly enough, everyone is suddenly happy with U.S. dominance of ICANN. Why?

Because ICANN was about to (gasp) approve the .xxx TLD. For about five years now, the folks at ICM registry have been trying to get an “adult” TLD for porn sites. The idea is that you could avoid adult content if you wanted to, or find it if you wanted to. ICANN started negotiations some months back and was scheduled to take a vote on approval.

A number of governments don’t like the idea, and expressed their concern at the ICANN meeting in Luxemburg last July. But nothing happened until the Department of Commerce received 6 thousand emails from the Family Research Council and its supporters urging them not to create the .xxx TLD (apparently on the theory it would “legitimize” porn on the internet). So the Department of Commerce flexed its muscle and “suggested” that ICANN listen to the Government Advisory Council (the part of ICANN to which governments belong) and put off consideration of .xxx. ICM, seeing the writing on ethe wall, sent a letter to ICANN that it wouldn’t mind a delay to persuade governments that .xxx is harmless. So ICANN voted for the delay.

What amuses me no end is that if the U.S. had flexed its muscle on some other issue, the international community would be throwing hissy fits about U.S. dominance of the Internet. But because it’s blocking porn, it’s o.k. The end result will probably be that ICANN becomes more solicitous of governments generally on TLD selection, which kinda defeats the purpose of putting authority for the Internet in a private organization. But heck, if it keep sthe internet safe from porn, what’s a little U.S. dominance among friends.

Stay tuned . . . .

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