Here is the text of my talk today (November 13, 2009) at the LTA Symposium at the the Center for Law, Technology, and the Arts at Case Western Reserve University School of Law in Cleveland, Ohio.
Hello, I am Karl Auerbach.
I've been around the internet for a very long time.
If there is anything about the net that is constant it is that the net is always changing.
A few months ago we discovered a hidden plumbing problem in my house. We hired a building inspector to take a look at the damage.
He told us that the supporting structure was badly damaged, that it was at risk of collapse, and that we'd have to replace some large supporting timbers.
Today much of our discussion has been about the more refined aspects of trademarks and domain names.
In this talk I'm going to take you in a different direction, down into the basement to take a look at the quality of the timbers that hold up trademarks, domain names, and internet governance.
Let's begin with the conflict between governance, authority, and technical reality.
The fabled anarchy of the internet is rapidly becoming a thing of the past.
Bodies and rules internet governance are quickly becoming a framework around which we structure our internet businesses and our internet lives.
If that framework lacks a firm foundation it could warp, be manipulated, or collapse.
Such a collapse would, in turn, have a ripple effect on all of the relationships and rights that we have constructed on that framework.
The effects of a crack in the foundation of internet governance could be significant, far flung, and painful.
When it comes to governance of the internet there are two foundation-stones: authority and technical reality.
Without authority, internet governance loses its power to command. Without authority a body of internet governance becomes nothing more than a small stone that barely disturbs the river flowing around it.
And without technical reality a body of internet governance will find itself superseded and become irrelevant.
We as a community of lawyers and technologists have been surprisingly willing to assume that authority exists or that technology will not someday be used in ways different than is the current norm.
The point of this talk is that we need to step back and examine our assumptions.
It is my contention that we will find the foundations of internet governance are lacking, weak, and in conflict with technical reality.
I believe that is time to put out the cautionary yellow flag in the race for internet governance.
We need to take a time-out to establish a firm foundation of legitimacy, authority, and technical relevance.
Our focus here is Domain Names and Online Trademarks – which puts us squarely in the bailiwick of ICANN.
A considerable portion of the rights that people believe they have in domain names and in trademarks associated with domain names derives from ICANN's provisions embedded in ICANN contracts.
Without ICANN many of our perceived rights in domain names and trademarks could vanish.
ICANN's foundation reminds me of a friend who lives in New Hampshire in a house built in 1763.
In the process of exploring a drainage problem he discovered that the house had been built on nothing more substantial than a few stones that had been piled up to support the wooden sills upon which the house was framed.
It cost a small fortune to jack the house up, insert a real foundation, and then cure the warping that had accumulated over the years.
I'm afraid that ICANN has put us into a similar position.
ICANN hits the double jackpot.
ICANN lacks a source of authority. And ICANN is based on a technical fantasy.
Unless these are cured we may have to jack-up our existing rules of domain names and trademarks, build a new foundation, and deal with the accumulated warpage.
To make matters worse the method of control used by ICANN will amplify the extent of the damage should ICANN begin to wobble.
ICANN sits at the vertex of a pyramid of contracts.
That guarantees that uncertainties about ICANN will quickly propagate.
ICANN's lack of authority means that it may be vulnerable on the grounds that it is an unlawful combination or conspiracy in restraint of trade.
We are here in Cleveland, home to J.D. Rockefeller and the Standard Oil Company.
J.D.R justified his monopolistic practices on the grounds they eliminated the harmful effects of competition. That certainly sounds like the arguments that INTA has advanced its arguments against new top level domains.
ICANN may eventually have to face the same questions that were faced in the 19th century by the Standard Oil Company.
And ICANN might have to answer those questions not only in the US but also in non-US jurisdictions such as the European Union.
ICANN's lack of technical reality means that ICANN will find itself high-and-dry should someone chose to establish a new DNS root.
These cracks in the stability and clarity of ICANN's role in internet governance will become wider and deeper as ICANN attempts to splatter itself into multiple legal entities in multiple countries using specialized national legal structures.
So let's examine the foundations that underlie our existing ICANN based regime of trademarks and domain names.
Where is ICANN's source of authority?
Many believe that ICANN's source of authority is like the Seven Cities of Cibola – illusory.
Does ICANN's glamor of authority exist only because internet users have, for the moment, chosen to avoid asking the hard question?
ICANN began and remains merely a California corporation. ICANN has no special legal status.
The authority that ICANN wields must come from some external source.
Did ICANN's authority come from the US Government?
ICANN's governmental companion, the National Telecommunications and Information Administration, has never been able to articulate a clear statement of its own authority to act as a regulator of domain names nor that if it had such power that it has the power to delegate it to a private corporation.
No less an authority than the US Congress' GAO has looked at ICANN – twice - and has come away without being able to find that either the Department of Commerce or NTIA has adequate authority.
Not long ago, in September of this year, ICANN and NTIA signed an “Affirmation” that purports to reduce the degree to which ICANN can be viewed as an instrumentality of the United States government.
That agreement was notable for the absence of any statement that could be construed as a delegation of authority to ICANN.
Alternatively was ICANN's authority somehow derived from Jon Postel or the function that Jon filled, that of the Internet Assigned Numbers Authority (IANA)?
If so, how did that task, a task performed via the University of Southern California, leap to ICANN
Assuming that Jon or IANA had the powers that ICANN now wields, an assumption that is not particularly solidly grounded, there is neither a trail of documents nor an oral history to support an argument that a transfer did occur.
Where else might we look for the source of ICANN's authority?
NTIA did issue a zero dollar purchase order under which ICANN performs an undefined “IANA function”.
It is hard to reconcile a government purchase order, the same process that the government uses to purchase janitorial services, as amounting to a delegation by the US government of discretionary authority over a large part of the internet.
Did that purchase order delegate to ICANN a right to charge internet users what cumulates to a large amount of money for the privilege of using certain parts of the net?
Did that PO give ICANN the power to assign very lucrative parts of the net to third party operators for time periods that are effectively perpetual?
If ICANN's authority did somehow come from the US Government, then what happens to that delegation as ICANN and the US Government try to distance themselves from one another?
These are not situations that create a sense of stability. Rather it suggests that ICANN has been nailed together too quickly.
We've all seen Road Runner cartoons.
Is ICANN in a situation like that of Wylie Coyote when he has run off a cliff and is standing in mid air? We all know what comes next - he looks down, realizes his predicament, and then crashes to ground.
It was once believed that the seas were too vast to be controlled.
And it has been said that the internet must have exactly one domain name system.
The idea that the seas were too vast was demolished in the latter 1800's by Captain Alfred Mahan of the United States Navy.
Is ICANN about to crash on the reef of technical reality?
ICANN's control over DNS depends upon the belief that the internet must have exactly one domain name system and that whoever controls the top level text file called “the root zone” controls that DNS.
That belief is technically inaccurate.
There already exist competing domain name systems.
Most of them are run very poorly and have given a bad name to the concept.
But good operators, needing only an investment of a few hundred thousand dollars, easily and without needing any permission can establish competing roots.
And despite the common wisdom, and the self-preserving statements of ICANN, the existence of competing roots no more destabilizes the internet or causes user confusion than the existence of competing mobile telephone companies.
There are significant impulses that are inducing the creation of competing roots.
First is the profit motive – there are considerable opportunities to derive positive cash flow from a well run competing root.
Second is that it provides a market-driven answer to the Gordian knot of new top level domains.
Third is that ICANN is perceived, even after the recent “Affirmation” as an instrument of United States hegemony over the net, thus suggesting to other nations the possibility of establishing their own roots as a kind of internet declaration of independence.
Should competing roots arise, ICANN will lose its ability to dictate the terms of the domain name marketplace, including the UDRP, Whois, and new TLDs.
In conclusion there are several reasons to be concerned that the foundation underpinning ICANN and today's domain name word is brittle and could suffer catastrophic collapse through a successful lawsuit or the establishment of competing DNS roots.
This does not mean that we should panic.
The absence of clear authority can be remedied through national legislation and international treaty.
Competing DNS roots can be viewed not as a threat but as an opportunity to allow market-driven deployment of new top level domains.
In the longer term today's domain name wars may become nothing more than sound and fury signifying nothing.
All of this may become moot because technical innovation, particularly with the rise of better search and directory systems, is eroding domain names as indicators of sources of goods and services.
In other words, the idea that domain names are trademarks may be an idea that has as much place in the future internet as a dial-up modem.
I'll be happy to take questions.