Get Out of My Namespace — wherein he suggests that – *gasp* – property rights might not be the right framework for solving this problem.
With commercialization, everything changed. The McDonald’s Corporation (and, for that matter, The New York Times Company) cadged their eponymous domain names from individuals who had presciently registered them. Other companies with important trademarks struggled, until Icann and WIPO established their system. Then came a surge of cases in the general category of trademark holder v. cybersquatter, routinely decided in favor of trademark holder. Time Warner won a case involving 108 variations on the theme of Harry Potter. Telia, the Swedish telecommunications giant, tried to win back 204 variations and succeeded with all but one: itelia.org. Such cases seemed fairly easy, to WIPO, at least. The new generation of name disputes is far more troublesome.
In these proceedings, trademark law is the elephant in the room, but trademark laws vary from country to country, and in theory the arbitrators are not supposed to rely on any nation’s laws. They use Icann’s Uniform Domain Name Dispute Resolution Policy, or U.D.R.P. This boils down to a three-part test, each part meant to be straightforward and clear-cut: […]
[…] As these conflicts have rattled the legal edifices of intellectual property, the response has been a sort of panic — a land grab. Trademarks are a case in point. As recently as 1980, the United States registered about 30,000 a year. Last year, the number was 185,182, a jump of nearly 50 percent from just two years before. The vast majority of trademark applications used to be rejected; now the opposite is true. A few of the words and phrases trademarked in the most recent batch this month were DRIVE HARDER, RELAXED LUXURY, MYASSISTANT, A COFFEE SHOP IN YOUR OFFICE, FLEXIBLE THINKER (a Canadian motivational speaker), RINGWRAITH (the Tolkien moviemakers still going strong) and DOING HIS TIME (for ”transportation of families of prison inmates”). Are any of these so special, creative or individual that ownership rights ought to be assigned?
[…] To cope with the dynamic, entangled, variegated nature of our information-governed world, perhaps the law just needs to relax — loosen the cords, instead of tightening them. A system based on property rights in names may be the wrong approach. The principle people really care about is authenticity and truthfulness. The law needs to prevent miscreants from pretending to be people they’re not or from passing off spurious products — but that is all. BODACIOUS-TATAS.COM may be unsavory, but it was not fooling anyone; it was not trying to impersonate the House of Tata; its wares were exactly as advertised.
Namespaces will collide. Let them.
Update: Slashdot discussion — The Worldwide Domain Battle