Racko and Shu respond to NTIA Request for Public Comment

[Jeff Williams]

Richard,

  Though I havn't compleatly digested your attachment here, I did notice
a lack of mention of allocations of IP addresses perposed by the ARIN
structure.  Is or has that been considered?

Richard Shu wrote:
> 
> The attached document is our response (speaking unofficially and not on behalf of any organization)
> to the NTIA RFC.
> 
> The deadline is today (August 18th) but I suspect that any responses reaching them before the start
> of business tomorrow (8 AM Eastern Time?) will be considered.  Also, if a steady flow of responses
> continues to be submitted this week, I expect they will consider those as well.  No guarantees, this
> is just my private opinion.
> 
> Please feel free to submit the attached document verbatim as your response or modify the text to
> reflect your opinions and submit the modified document.
> 
> I invite non-U.S. citizens to inform the government of our great country as to the proper limits of
> their involvement.
> 
> Finally, Bob and I would welcome any feedback directed either to one of the relevant mailing lists
> or to us directly.
> 
> Regards,
> Richard Shu (rshu at inetnow.net)
> Bob Racko  (bobr at dprc.net)
> 
>     ---------------------------------------------------------------
> To: Ms. Paula Bruening
> From: Bob Racko, Richard Shu
> Re: DEPARTMENT OF COMMERCE [Docket No. 970613137-7137-01]
> The following is response to the Request for Comments on the Registration and Administration of Internet issued by the National Telecommunications and Information Administration (NTIA).
> Messrs. Racko and Shu are responding as interested private citizens.  They operate root servers which are part of the Universal Domain Name System (uDNS) root server confederation.  Mr. Shu represents uDNS at the Root Server Confederation (RSC) roundtable.  This roundtable includes the following Root Server Confederations: eDNS, uDNS, AlterNIC, caNIC, AURSC.
> Contact information:
> Richard Shu (rshu at inetnow.net)
> Bob Racko   (bobr at dprc.net)
> _________________________________________________________________________________
> The Government seeks comment on the principles by which it should evaluate proposals for the registration and administration of Internet domain names.
> Are the following principles appropriate?
> The principles are generally appropriate to the registration and administration of Internet domain names.  However, this section presumes that the U.S. government should solicit and evaluate proposals.  The level of international objection to IAHC proposal is a strong indication that the evolution of the Domain Name System is an international and non-U.S. centered phenomenon.  Accordingly, the U.S. government should be hesitant to make any unilateral moves such as endorsing a particular proposal
> The U.S. government needs to determine whether to support or oppose NSI's claim of proprietary rights to the .com, .org and .net domains.  It further needs to determine which entities, if any, should rule on the creation of new gTLDs.
> Are they complete? If not, how should they be revised?
> The principles set forth are more or less comprehensive.  We would suggest some changes in emphasis.  Most importantly, the primacy of proprietary rights such as trademarks and service marks as codified in existing law should be emphasized.
> We would also suggest that, although "synchronization of domain names among DNS servers" is an ideal to be pursued, lack of synchronization is not fatal to the interoperation of the Internet.
> We define two modes through which a DNS server can be "out of synch" with other DNS servers.  A server can create an active fault by hosting a domain name with a conflicting mapping from the mapping generally available on other servers.  Alternatively, a server can create a passive fault by failing to carry a domain name generally available on other servers.  It should be clear that an active fault is much more serious than a passive fault.
> Finally, it should be asserted that registration of SLDs can be performed by an entity other than the entity which maintains the TLD database.  This opens the door to sharing the registration function for a TLD.
> How might such principles best be fostered?
> In keeping with the country's strong tradition of free enterprise, the U.S. government should seek to open up the TLD registration industry up to market forces by removing barriers to competition.
> The U.S. government should seek to discourage, prevent and prohibit anti-competitive activity.  It should seek to promote introduction of additional root servers and TLD registries.  In particular, in recognition of the fact that root server operation and TLD registration require only a moderate level of infrastructure, the U.S. government should promote the entry of small-businesses into the industry and seek to prevent large corporations from dominating and monopolizing the market.
> The administration of the Domain Name System should be structured so as to strongly discourage active faults.  Free market forces should be allowed to act so as to mimimize and ultimately eliminate passive faults.
> 
> a. Competition in and expansion of the domain name registration system should be encouraged. Conflicting domains, systems, and registries should not be permitted to jeopardize the interoperation of the Internet, however.  The addressing scheme should not prevent any user from connecting to any other site.
> b. The private sector, with input from governments, should develop stable, consensus-based self-governing mechanisms for domain name registration and management that adequately defines responsibilities and maintains accountability.
> c. These self-governance mechanisms should recognize the inherently global nature of the Internet and be able to evolve as necessary over time.
> d. The overall framework for accommodating competition should be open,robust, efficient, and fair.
> e. The overall policy framework as well as name allocation and management mechanisms should promote prompt, fair, and efficient resolution of conflicts, including conflicts over proprietary rights.
> f. A framework should be adopted as quickly as prudent consideration of these issues permits.
> 
> B. General/Organizational Framework Issues
> 1. What are the advantages and disadvantages of current domain name registration systems?
> Advantages:
> Having a single entity perform root service and SLD registration has simplified the administrative tasks.  Coordination among multiple entities adds complexity to the task.
> Disadvantages:
> The same agency that allows commercial registration in a limited set of domains also has final say over what other domains are included in root servers that they administer. This is a disadvantage as it discourages the introduction of other brands of gTLDs as well as disenfranchises those who would offer competitive root service.
> The current system discourages the creativity exhibited in other ISO country codes.  It does not show flexibility at the SLD level.  If more flexibility were provided, then the .us domain could be as popular as .com.
> 
> 2. How might current domain name systems be improved?
> The U.S. government should encourage the domain name registry industry to grow by incentivizing it without subsidizing it or regulating it.
> Organizations which have control over the creation and termination of TLDs should not also provide TLD registration activities because of the inherent confict of interest.
> The U.S. government should encourage the use of TLDs that allow entities that wish to register a SLD to select an appropriate TLD which characterizes their products, services and activities.  For example, one group of TLDs might correspond to SIC areas.  This would reduce conflicts over proprietary rights.
> There is great concern over the desire of some parties to monopolize certain TLDs in the hopes of realizing financial gain.  We urge that TLDs consisting of non-trademarkable marks (e.g. common English words) be made non-exclusive.  Registration of second level domains in those TLDs should be open to all entities that meet the qualifications to be a registry.
> The U.S. government should assist in building the public trust by endorsing operational standards or encouraging their formation.
> 
> 3. By what entity, entities, or types of entities should current domain name systems be administered? What should the makeup of such an entity be?
> Domain name registration should not be performed, subsidized or regulated by governments.
> Centralizing DNS operations and/or limiting the number of TLDs does not promote commercialization or the sustainable growth of competitive offerings.
> There are several business models currently in use by root server confederations.  Root server confederations can be commercial, volunteer or non-profit organizations. All three can co-exist: NSI and AlterNIC (www.alternic.net) iare commercial operations, eDNS (www.edns.net) is operated on a volunteer basis, uDNS (www.udns.org) is non-profit, pgMedia is a hybrid.
> 4. Are there decision-making processes that can serve as models for deciding on domain name registration systems (e.g., network numbering plan, standard-setting processes, spectrum allocation)?
> The current system for registering trademarks and service marks seems to be the best solution for exclusive domains based on trademarkable words.  Industry self-regulation via certification of professionals (e.g. doctors and lawyers) is a good model for regulating the TLD registry industry.
> Are there private/public sector administered models or regimes that can be used for domain name registration (e.g., network numbering plan, standard setting processes, or spectrum allocation processes)?
> The model of a centralized reservations system handling bookings made on a decentralized basis by independent entities (e.g. travel agencies) seems to be a close fit.  This does not require or preclude a centralized database.  A set of cooperating, decentralized databases can also satisfy the requirements and may, in fact, facilitate the concept of shared TLD registries.
> What is the proper role of national or international governmental / non-governmental organizations, if any, in national and international domain name registration systems?
> Governments need to expand the judicial system to handle more volume for trademark/servicemark protection and rulings.  The structure and procedures of the existing system are well-established and are well-suited to application in the domain name industry.  The major failing seems to be that the system is overwhelmed by volume.  To the extent that governments are unable to expand the judicial system to handle the increased load, the industry should encourage the use of private conflict resolutio
> The primacy of trademark law should be asserted.  In particular, governments should insist that the 'prior-use' principles of of trademark law be strictly applied with respect to domain names.
> The government should allow entities to assert exclusive control over only those TLDs that are based on trademarks or service marks.
> With respect to trademark and service mark issues, the Internet should be considered a 'medium' like radio broadcasting or magazine publishing.  Products advertised in a medium are still differentiable when they are clearly associated with an industry (soap,food,cars,travel etc.).
> 5. Should generic top level domains (gTLDs), (e.g., .com), be retired from circulation?
> No, this would be very disruptive to the Internet.  Also, the current gTLDs should not be closed (i.e. new registrations of SLDs should be allowed)
> Should geographic or country codes (e.g., .US) be required? If so, what should happen to the .com registry?
> No, but geographic or country codes (e.g., .US) should be kept open and shared as should the .com, .net and .org gTLDs.
> Are gTLD management issues separable from questions about International Standards Organization (ISO) country code domains?
> Yes. Geographic specialization needs to be encouraged but cannot supplant the economic benefit of global economies (including global marketing).
> 6. Are there any technological solutions to current domain name registration issues?
> Yes there are technical solutions to the technical problems.  The major obstacles to evolution of the TLD registry industry  have been political rather than technical.  A number of experimental TLD registration systems (AlterNIC, eDNS, and pgMedia) have proven the technical viability of TLD proliferation.
> The initial failure of the TLD registry industry to cooperate has its roots in the desire to monopolize the industry for financial gain.  Current trends in the evolution of the industry point towards an increasing willingness to share registration activities for a particular TLD.
> Let us first identify what the issues are:
> 1) Synchronization
> This is technically straightforward long as different root servers agree that they want to synchronize.
> 2) Shared registration
> Root server synchronization (among TLDs) can be resolved with protocols.  The issue of shared SLD reservations can be addressed by distinguishing SLD registration operations from TLD server operations.  TLD servers could host a central database that is analogous to the central database used for airline reservations.
> Are there any issues concerning the relationship of registrars and gTLDs with root servers?
> Yes, TLD registrars need to be able to count on the operations of the root servers which carry their TLDs.  The creation of a new TLD should occur via a protocol which is clearly stated and consistently applied.  Ideally, an automated mechanism should be implemented to process applications for new TLDs.
> 7. How can we ensure the scalability of the domain name system name and address spaces as well as ensure that root servers continue to interoperate and coordinate?
> Software on root servers should automatically determine whether a registered TLD server meets the operational criteria established by industry self-regulatory associations.  These operational criteria should include performance metrics such as latency, response-time and downtime.  The software will automatically de-commission any TLD server that is overloaded or improperly load balanced and automatically commission any server that requests to be authoritative for any new TLD via a protocol that
> Multiple TLD servers may respond as authoritative nameservers for the same TLD,  Timestamps on name (subdomain) activation can be used to resolve any conflicts.  Root servers can clearly determine first-use and then decommission any TLD server that acts to multiply define a name in the same domain. This would act as a disincentive for competing registries to create conflicts with other's SLDs and yet permit multiple TLD servers and registries for the same TLD.
> 8. How should the transition to any new systems be accomplished?
> The U.S. government should endorse and encourage other governments to endorse a revised protocol for existing root servers.  The major player in the industry (NSI) should be invited to participate in the setup and formation of other root server confederations.
> 9. Are there any other issues that should be addressed in this area?
> 
> C. Creation of New gTLDs
> 10. Are there technical, practical, and/or policy considerations that constrain the total number of different gTLDs that can be created?
> There are no technical or practical considerations that constrain the total number of gTLDs that can be created. This has been proven by the fact that there are over 8 million SLDs in the .com domain.
> By analogy, a root name server could equally handle a very large number of TLDs without significant degradation in performance.  DNS performance is less a function of the number of TLDs than it is a function of the SLDs served by a TLD server.  It might be argued that proliferation of TLDs would act to decrease the operational load placed on any single TLD server.
> Some entities stand to gain financially by limiting the number of TLDs.  The U.S. government should strenuously oppose as anti-competitive any proposal which seeks to limit the number of TLDs.
> Some parties might assert that there are policy considerations based upon the desire to use the domain name system as a directory service.  While some TLDs are, in fact, structured to provide a directory service (most notably, the ISO country code TLDs), this approach has generally led to long, unesthetic names whose directory value is of questionable value.
> 11. Should additional gTLDs be created?
> No, at least not by governments.  The government should neither mandate nor prohibit the creation of additional gTLDs.  The decision to create or terminate gTLDs should be made by the free market.  This is a crotoca; distinction.  The government should not attempt to determine which gTLDs should be created or even how many should be created.  Instead, it should take a "laissez-faire" approach which allows the free market to make these decisions.
> 12. Are there technical, business, and/or policy issues about guaranteeing the scalability of the name space associated with increasing the number of gTLDs?
> No.  If the majority of gTLDs are shared, the number of TLDs can increase dramatically with little effect on DNS operations.  The best indication of this is the fact that the .com TLD has over 8 million SLDs and there are no known performance issues directly related to the number of SLDs.  By analogy, a root name server could equally handle a very large number of TLDs without significant degradation in performance.  DNS performance is less a function of the number of TLDs than it is a function o
> 
> 13. Are gTLD management issues separable from questions about ISO country code domains?
> Yes.  Neither the U.S. government nor any U.S.-centric industry organization is appropriate for administering issues regarding resources used internationally because it will create international disputes.  The management of ISO country code domains is properly under the jurisdiction of each national government.  Ideally, the management of gTLDs should be under the jurisdiction of self-regulating industry associations.  Failing that, the gTLDs should be managed by a quasi-governmental internation
> 
> D. Policies for Registries
> 15. Should a gTLD registrar have exclusive control over a particular gTLD?
> 
> Are there any technical limitations on using shared registries for some or all gTLDs?
> Yes and No. It is useful to differentiate between the function performed by a TLD registry and a TLD server. As mentioned earlier, these functions do not need to be performed by the same entity.
> A registry populates one or more TLD servers. This is by agreement with the operators of the TLD servers.  A TLD server owner may compete with another TLD server owner over the same TLD. The competition is fair and consistent with interoperability if only one TLD server answers for a given SLD.
> Any conflicts caused by multiple responses for the same SLD can be detected by the resolving DNS server at the ISP.  Conflicts can posted back to both the TLD servers and the roots who will take appropriate action including, if necessary, the decommissioning of the offending TLD server.
> Can exclusive and non-exclusive gTLDs coexist?
> Yes.  In fact, the current gTLDs can either be kept exclusive (to NSI) or made non-exclusive.
> 16. Should there be threshold requirements for domain name registrars, and what responsibilities should such registrars have? Who will determine these and how?
> Self-regulating industry associations should establish requirements for domain name registrars.  These registrars should have as primary responsibility the assurance to the registrant that their requested SLD does not conflict with a prior registration.
> Similarly, industry association should set requirements for root servers and TLD servers.  The primary goal of these requirements should be to ensure the stability of the Internet.
> 17. Are there technical limitations on the possible number of domain name registrars?
> None seem evident.
> 18. Are there technical, business and/or policy issues about the name space raised by increasing the number of domain name registrars?
> None seem evident except the possibility of a registrar perpetrating fraud.  This, however, is a risk that is not unique to the domain registry industry.
> 19. Should there be a limit on the number of different gTLDs a given registrar can administer?
> No.  Monopolizing the space can be avoided but our experiencce shows that this is best done by disincentives rather than by artificial limits.  If all non-trademarkable words must be sharable, this is a strong disincentive.
> Does this depend on whether the registrar has exclusive or non-exclusive rights to the gTLD?
> Yes.  Exclusive gTLDs must have pre-existing use outside the internet/medium before being permitted exclusive use of a TLD or trademark within the medium.  However, as there is no limit to the number of trademarks that an entity may possess, it is reasonable to assert that there should be no limit on the number of trademarked exclusive gTLDs, that an entity may claim.
> 20. Are there any other issues that should be addressed in this area?
> 
> E. Trademark Issues
> 
> 21. What trademark rights (e.g., registered trademarks, common law trademarks, geographic indications, etc.), if any, should be protected on the Internet vis-a-vis domain names?
> All trademark rights should be protected on the Internet.  This principle should be asserted with respect to all forms of Internet activity, not just domain names.  Trademark law should treat the Internet as a broadcast medium which is limited by:
> 1) geographic scope if an ISO or greographic TLD is suffixed on the name
> 2) SIC area if it is suffixed by a TLD that is associated with an SIC 'brand' area.
> 3) international scope if there is no suffix or 'brand' protection then, is a matter of providing service until a court of competent jurisdiction serves notice of judgement that is different from the current name holder.
> 22. Should some process of preliminary review of an application for registration of a domain name be required, before allocation, to determine if it conflicts with a trademark, a trade name, a geographic indication, etc.?
> No.  It is incumbent on the applicant to determine if there is a potential conflict.  Preliminary review is unnecessary it will add cost to and delay the application process.
> If so, what standards should be used? Who should conduct the preliminary review? If a conflict is found, what should be done, e.g., domain name applicant and/or trademark owner notified of the conflict? Automatic referral to dispute settlement?
> 23. Aside from a preliminary review process, how should trademark rights be protected on the Internet vis-a-vis domain names?
> No service 'holds' or suspensions should be permitted.  As a condition of certifying a registry and accepting its registrations, each registry should be made to agree to be bound by court decisions.
> What entity(ies), if any, should resolve disputes?
> The normal judicial system having competent jurisdiction.
> Are national courts the only appropriate forum for such disputes?
> Not always.  International courts of law and other inteernational organizations may be an appropriate forum.  The operating principle should be that marks on the Internet such as TLDs and SLDs are subject to the same law as other marks.
> Specifically, is there a role for national / international governmental / nongovernmental organizations?
> Yes but existing organizations are adequate.  It is unnecessary and unadvisable to invent and implement an entirely new system which would then compete with the existing system for jurisdiction.
> 
> 24. How can conflicts over trademarks best be prevented?
> Making trademark information widely available and also domain registration information widely available.  However, it should be considered that the incidence of trademark conflicts is not as high or as critical as some would assert.
> NSI is currently registering 80,000 names per month on average with 3 trademark conflicts each month.  It would appear that the problem of trademark conflicts is somewhat exaggerated.
> What information resources (e.g. databases of registered domain names, registered trademarks, trade names) could help reduce potential conflicts?
> All of the above mentioned databases would help.
> If there should be a database(s), who should create the database(s)?
> Creation of the database should be left to private enterprise.  There are currently private services that provide trademark searches.
> How should such a database(s) be used?
> It would be advisable for a domain name applicant to search such databases prior to submitting an application.  A non-refundable application fee would increase the incentive to perform due diligence.
> 25. Should domain name applicants be required to demonstrate that they have a basis for requesting a particular domain name?
> No.  Such a policy would prevents automation of the application process because it adds a component to the application that requires human review.
> If so, what information should be supplied? Who should evaluate the information? On the basis of what criteria?
> The cost of evaluating the information would have to be passed on to the applicant and thus raise the cost of registration for all applicants.
> 26. How would the number of different gTLDs and the number of registrars affect the number and cost of resolving trademark disputes?
> The number of gTLDs has less effect on the number and cost of resolving trademark disputs than the taxonomy of gTLDs.  If TLDs are generic (e.g. .com, .corp, .inc, .web), then they do increase trademark disputes.  If they are named with more specific categories (e.g. .law, .oil, etc.), then they do not.
> 27. Where there are valid, but conflicting trademark rights for a single domain name, are there any technological solutions?
> There may be technological solutions but the best solution may be a policy solution.
> The existing hierarchy of international, national and state trademark registries follows a protocol of respecting first use within a particular geographic extent. The same principles should be applicable with respect to domain names.
> For an SLD name, the issue is already handled.  Having multiple TLDs for the same SIC area (tld-brands) the trademark resolution can be put in the hands of those who are registrars for the TLD chosen.  The registrars should defer to the courts or form a review body themselves.  The quality of the decisions will directly affect the profitablity of the registrar.
> At higher levels, conflicting international trademarks have resolution which cross governmental boundaries.  Individual governments best abstain and defer to the existing international bodies (or offer to educate them).
> 28. Are there any other issues that should be addressed in this area?
> Allowing exclusive ownership / sponsorship / farming or even administration of a TLD (without trademark) tends to invite speculation.
> Still others used 'external' pressures to maintain control and monopoly of TLDs.
> Some attempted to use trademark protection for non-trademarkable names by claiming waivers "for Internet purposes" or with a simple prefixing period as in .music to dissuade competition and increase FUD.  This produced additional trademark speculation which would eventually be overturned but initially kept valid registrars from starting operations.

-- 
Jeffrey A. Williams
DIR. Internet Network Eng/SR. Java Development Eng.
Information Eng. Group. IEG. INC. 
Phone :913-294-2375 (v-office)
E-Mail jwkckid1 at ix.netcom.com