Slashdot Mirror

ICANNWatch

(which is also covering this story)

Note the michael posting articles on that site is A. Michael Froomkin, not Slashdot's Michael Sims

The article gets two facts wrong:

1. The US government remains in charge of the DNS. ICANN is just its agent, by contract. The contracts expire in a few months, but are renewable. The US government can under the current contracts take back all power and terminate ICANN's authority. The government wishes to downpeadal this, both to avoid being held responsible for ICANN and to lessen attention to the issue of renewing or even expanding ICANN's role this fall.
2. It is not correct that "Nine of its board members are chosen by organizations that run the technical side of the Internet." Even if one accepted this fits the PSO, and the ASO, it cannot by any analysis fit the DNSO - which is the business constituency, and has NO technical element AT ALL.

Seems to me that there's a market for various sorts of warranties as a value-added service to open source. But I doubt that anyone is going to give a blanket warranty that a firewall or anything else is hacker-proof, whether that something is open or closed source. In both cases the downside liability is just too great.

The folks who built your home didn't give you a warranty that it was burglar-proof. Even my alarm company only promises intrusion detection and rapid reaction...

I invite you to visit ICANNWatch for details on what's wrong with ICANN.

P.S. To say that "the truth lies somewhere in the middle" is to (1) allow "truth" to turn on how extreme participants happen to be; (2) ignore the possibility that there is real truth (is the truth half way between the flat-earth crowd and the spherical-earth crowd? What sort of shape is that?)

I've said for years that my kids should be paying me license fees for their use of my genes.

Only problem is that the life of a patent doesn't extend to their prime income-earning years....

Next problem: what if I want to revoke that license?

While I wish it was otherwise, Boyd is (all but?) dead. It was decided over 100 years ago, and has been whittled down to (next to) nothing.

In Boyd v. United States, 116 U.S. 616 (1886) the Supreme Court stated that private papers are an owner's "dearest property." Id. at 627-28. Relying on both the Fourth and Fifth Amendments, the Court found that allowing the state to compel production of that property would be "abhorrent to the instincts" of an American and "contrary to the principles of a free government." Id. at 632. The rule in Boyd has been criticized. For example, Judge Friendly called it "ringing but vacuous" because it "tells us almost everything, except why." Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 682 (1968). Nevertheless, as recently as Bellis v. United States, 417 U.S. 85 (1974), the Supreme Court reemphasized that the Fifth Amendment protects "'a private inner sanctum of individual feeling and thought', an inner sanctum which necessarily includes an individual's papers and effects to the extent that the privilege bars their compulsory production and authentication." Id. at 91 (quoting Couch v. United States, 409 U.S. 322, 327 (1973)).

Nevertheless, it seems very likely that a majority of the Supreme Court would hold that the rule found "abhorrent" in 1886 is now the law because the rule in Boyd has been whittled away to irrelevance: First, only natural persons can find shelter under the Fifth Amendment, and only for papers they both own and control. Thus, corporations can never claim the privilege, and neither can natural persons with regard to corporate records, even if they created and now control those records. Braswell v. United States, 487 U.S. 99, 109-10 (1988). Second, once papers are handed to another, the legitimate expectation of privacy needed to maintain a claim under either the Fourth or Fifth Amendments disappears. (The attorney-client privilege is an exception to this general rule.) Third, records required to be kept for legal or regulatory purposes are outside the privilege. Shapiro v. United States, 335 U.S. 1 (1948). Fourth, persons can be forced to perform nontestimonial acts such as giving handwriting samples. Gilbert v. California, 388 U.S. 263, 266-67 (1967). This rule has also been applied to voice samples, United States v. Wade, 388 U.S. 218, 222-23 (1967). and blood samples. Schmerber v. California, 384 U.S. 757, 767 (1966). Fifth, aliens outside the sovereign territory of the United States do not ordinarily enjoy Fifth Amendment rights. Finally, in Baltimore City Department of Social Services v. Bouknight, the Supreme Court, analogizing the mother's care of the child to a required record, held that producing a child was not testimonial, and therefore the Fifth Amendment did not apply. See also Andresen v. Maryland, 427 U.S. 463, 472-73 (1976) (holding that a legal search of the petitioner's office resulting in the seizure of voluntarily recorded business records authenticated by a prosecution witness was not a violation of the Fifth Amendment); Bellis v. United States, 417 U.S. 85, 101 (1974) (holding that a dissolved law partnership had its own institutional identity, and its records were held in a representative capacity; therefore a grand jury subpoena for those records could not be ignored on Fifth Amendment grounds); United States v. White, 322 U.S. 694, 698-99 (1944) (holding that an officer of an unincorporated labor union could not refuse, based on Fifth Amendment protections, to produce the union's records); Hale v. Henkel, 201 U.S. 43, 56-58 (1906) (holding that a witness who, because of statutory immunity, cannot invoke the Fifth Amendment as to oral testimony cannot invoke it against the production of books and papers).

In light of these decisions it is fair to ask whether the Fifth Amendment applies to anything other than oral testimony. The odds are that the Supreme Court would hold that it does not, that Boyd has therefore lost all its vitality, and that Justice O'Connor was correct when she stated that the exceptions have now swallowed the rule: "[T]he Fifth Amendment provides absolutely no protection for the contents of private papers of any kind." United States v. Doe, 465 U.S. 605, 618 (O'Connor, J., concurring).

Today, as it happens, marks the opening of the Disputes.org/eResolution.ca Consortium. We'll be providing the first wholly online domain name dispute resolution system, and we have a very distinguished panel of arbitrators. It's all explained in our press release or you can go straight to either the eResolution or Disputes.org homepages.

The Consortium is accredited by ICANN, which means you will be able to use our services for all gTLD-related disputes in the legacy root, including domains registered by NSI. I expect we will be listed on the NSI "Domain Magistrate" page soon (as I understand it, that page is really just a front end for the ICANN-mandated dispute process).

I'm a founding member of disputes.org, so I'm biased, but I think our international panel of arbitrators is pretty impressive and the online complaint forms are handsome and functional. What do you think?

P.S. For this purpose, ignore my automatic .sig below. My participation in disputes.org is not connected with my day job....

From this photo of what a scan reveals of body contours it seems to me that if a man were wearing boxers instead of what in this pix look like briefs (and even so real enough to bother some people) or if a women were not wearing a bra, the photo would be fairly revealing. I think that people with body modesty would have a legitimate complaint here.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA

I'm sorry, but on what exactly is e-toys case based? I don't see it.

There are four families of possible causes of action. From what I've read in the papers (I have NOT seen any of the actual court documents) none of them works:

1. The Lanham Act. But etoys have to overcome insurmountable difficulties here. First, the etoy people were there first.
   1. Trademarks are not retroactive. If etoy was there first, they win under the Lanham Act.
   2. Second, the two groups are in different lines of business. So the likelihood of confusion is tiny.
   3. Third, the etoy people are arguably non-commercial; the Lanham Act only applies to commercial uses of a name.
2. State and federal anti-dillution law.
   1. I don't know anything about Cal. state anti-dillution law (if any), so I'll pass on that.
   2. Federal anti-dillution law only appplies to commercial users. Same issue as above.
   3. To prevail under federal dilution law, etoy would have to prove that their mark was "famous". While not impossible, it is a stretch.
   4. 15 USC 1125 only protects a famous mark if the dilutive use "begins after the mark has become famous." That is clearly not the case here.
3. The cybersquatting bill only applies if the alleged squatter was acting in bad faith. That is clearly not the case here.
4. This is not a case where unfair competition law applies.

I think the judge was wrong to grant the injunction. Some combination of talk about securities fraud, other bad things, the xmas rush, the home town advantage, judicial error, whatever, produced the injunction. I don't see how it could have survived an appeal. Or am I missing some fact somewhere? Anyone seen the actual court papers?

To my eye it's no wonder etoys is trying to drop the case.

Again, keep in mind I'm not a California lawyer, so this is quite suspect, but...

I read it to mean that mere reverse engineering of a legally acquired copy, e.g. on the open market, is not actionable. The "extra" bit that might make the suit potentially valid is if there was a direct contractual obligation not to disclose on the part of the recipient.

Which makes you wonder what happens when states start passing laws like former-UCC 2B-now-UCITA which (last time I checked) lets them impose no-reverse-engineering clauses on consumers...

There is no obligation on plaintiffs to be "non-discriminatory" in who they sue. It suffices that they sue wrongdoers. If there are more who are left out who owed duties to the sued defendants, they can implead them (defendants turn around and force others in to the case). But if you are part of a gang that beats up Bob, and Bob sues just you, it's no defense to your liability to say that you were part of a gang.

Of course, suing people who are not guilty is a big no-no: "If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorneys' fees to the prevailing party." Cal. Civ.Code 3426.4.

I'm not a California lawyer, and california law has all sorts of strange wrinkles. Plus, the complaint raises a claim for "misappropriation of trade secrets" which sounds like it may have some common law component as wall as a statutory aspect(??). But here, in any case, is an arguably relevant statute, Cal Civil Code sec. 3426.1:

3426.1. Definitions
As used in this title, unless the context requires otherwise:
(a) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means.
(b) "Misappropriation" means:
(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(2) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(A) Used improper means to acquire knowledge of the trade secret; or
(B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:
(i) Derived from or through a person who had utilized improper means to acquire it;
(ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
(c) "Person" means a natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
(d) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Please don't get me wrong, I'm not advocating that outcome, just reporting. I should also note that sec. 3426.2(a) says that injunctions must be lifted if someone demonstrates that the "trade secret has ceased to exist" and that sec. 3426.2(b) says that "If the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time the use could have been prohibited."

All that aside, an injuction against "linkers" as opposed to posters would seem to me to be outrageous. But there is a little bit of (ugly) precedent floating around....

Final point: while showing up in numbers can't hurt, it would be a lot better if one of the free software groups could get a lawyer down there and attempt to appear either as an intervenor or as a friend of the court. Much more likely to have some effect. Spectators are not allowed to talk in court.

Speaking as a law professor, and sometime teacher of constitutional law, I think either

1. your friend goes to one h*ll of a lousy school, or
2. (more likely) she was pulling your leg, or
3. I'd start worrying about her grades.

According to her, they teach the following at her school:

• Laws must be written vaguely, otherwise they will have unintended consequences that cannot be addressed(!?)

It's certainly true that there is a relationship between specificity and the inability to address unexpected consequences. But it's trivially obvious that there are many times when specificity is to be preferred. In the US, also, if a law is too vague it may be "void for vagueness" or even (in an extreme case) held to violate the constitutional non-delegation doctrine under which Congress may not make standardless delegations of power to the executive.

• The 'average' American must not be allowed to participate in the political system (ie, run for Congress) because they are incapable of understanding the issues involved with creating laws that run the country

This is simply nonsensense. I honestly don't think I know a single person in law teaching who believes this. I find it hard to imagine anyone saying this to a class without becoming the subject of (deserved) derision.

• The rights enumerated in the Constitution were never meant to apply to the general populace, but to an 'educated' superset (she got upset when I began calling it an 'elite class') that would then make all decisions on behalf of the people

There is maybe half a grain of truth here, but very distorted. It's true that at the time of the Framing, only white males could vote, and that a small number of states still had a (relatively low) property requirement for the franchise. The property rules lasted only a few years; giving women and non-whites the vote took much longer. But it's absurd to say that only elite men were expected to vote or have rights. Leaving aside the rather significant issues of blacks and Native Americans, it is very clear (in principle, and sometimes in practice) that the rights in the constitution, including the bill of rights, were for all.

It's less clear that political power was originally intended to be democratized. Only the House was a really democratic body; Senators were selected by state legislatures, and the President by an Electoral College - both measures designed to avoid having too much control by the unwashed. The dominant political theory of the day was more republican than democratic - rule should not be by direct democracy for fear of rule by the mob, by "passion". Hence the compromise of SOME highly democratic power in the House, including the ciritical power to initiate taxation (because tax without consent of the governed was wrong), but not what they thought of as too much.

Of course, all that was a long time ago, and the extent to which we should consider ourselves bound by the less than perfectly democratic intentions of a bunch of what some call "dead rich white guys" is controversial, especially in light of the large number of relevant constitutional amendments that make our system far more (formally) democratic today.

Actually, there's very little new in this paper, although the presentation is very snappy, and the PR blitz is impressive, verging on excessive (I've seen this announcement about 15 times on various lists today).

For a much more detailed, and perhaps more tedious, look at law and anonymity issues, see my paper Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases (1996), which discusses the cryptographic foundations of anonymity, and the legal issues it raises. You may also be interested in my 1996 paper on the Clipper Chip, which discusses whether a legal restrictions on crypto use would be consitutional.

Hmmm. Maybe next time I write a paper I should issue a press release? (No, I know, I should write shorter papers....)

NYT now has a newer article with more info, including Posner "has no authority to force the parties to reach a settlement, or to impose one" and the 7th Circuit mediation rules (for non-judge mediators, I'd bet), rules which won't apply formally, but might be influential, state that "the mediator does not tell the district court judge trying the case what occurred during the talks. That way, if the talks fail because of one party or another, it will not prejudice the judge as he prepares his verdict."

The New York times reports that both sides agreed to the Posner appointment in chambers. That means they can't object later. The Washington Post also reports the interesting fact that Judge Jackson has appointed Harvard Prof. Larry Lessig, briefly a special master in the case, to "advise" him.

Alas, neither report tell us what kind of mediation it will be. Presumably, though, not the sort where parties have to accept the mediator's decision. Apparently the order will be published on Monday.

Having sitting judges accept appointments as mediators or arbitrators is common in the UK. It is very rare in the US, and probably would be unacceptable if the appointing authority were anyone other than another judge. It's certainly unorthodox.

As for Posner, while something of a sceptic about regulation, his jurisprudential writing is strong on the obligation of judges to follow Congressional intent. Indeed, he even suggested (playfully?) in one writing that maybe judges should interpret statutes like the securities and anti-trust laws more expansively, because the Congresses that passed them [controlled by Democrats!] desired expansive constructions, but that laws passed by more recent Congresses [controlled by Republicans!] might be read narrowly due to the different tenor of modern Congresses...

In person, Posner is very different from what you would expect from his energetic writing style. Quiet, almost sweet, very interesting, could be someone's favorite uncle or maybe grandfather. Lots of fun to have lunch with.

I'm a lawyer and (worse?) a law professor, so I have to start with disclaimers: this isn't legal advice, consult a lawyer who is familiar with the facts of your situation, etc. etc. YMMV. Consult the other disclaimers at once, etc. etc..

I should also note that what follows is based on the law at the time the letter was written (i.e. I am not taking account of the cybersquatting bill, which AFAIK has not actually passed both houses yet although I gather it's almost a foregone conclusion).

Furthermore, trademark law varies some (but only some) from country to country. I know much more about US law than I do about other countries. What I do know about European trademark law, however, suggests that the position of a domain name registrant viz a viz a brick & mortar trademark holder is a little less favorable in, say, the Netherlands, than it would be in the US because the distinction between commercial/non-commercial uses is less strong, and because mere registration may qualify as "use" of a trademark or some other type of infringing activity. What follows is primarily geared to the US domain name registrant.

As a general rule, trademark law divides the universe of trademarks into two families: a fairly small set of "famous" marks (think "CocaCola (tm)" and everything else. In the US the "famous" marks (and, weirdly, maybe some non-famous marks) are protected by relatively new federal anti-dilution statute and in many but not all states by (older) state anti-dilution laws which do vary. All trademarks, whether famous or not, are also protected against "confusion" and "tarnishment" (and other stuff we'll ignore for now). Tarnishment prosecutions are rare, but the law protects against the association of a trademarked name with something really bad (porn or drugs), modulo first amendment concerns (but then beware libel law). Running a porn site, even a free one, might well be considered tarnishment if the site's name was easily confused with a trademarked name.

The critical points to understand, as a first approximation to the law only, are these:

• In the US, although not necessarily in other countries, mere registration of a domain name, without something more (infringing use and/or an offer to sell the domain name, especially one that is part of a pattern of such offers), is NOT a violation of trademark law. There might be some special cases sounding in unfair competition law (e.g. registering the domain name of a competitor), but we'll ignore that.
• If
  1. your use is purely non-commercial (you are not even selling T-shirts), and
  2. you have never offered to sell the domain name to anyone for anything, and
  3. you are not guilty of tarnishment
  then your legal position is very strong.
• If you are engaged in any sort of commercial activity using the domain name, it matters whether the trademark is famous or not.
  • If it is (and fame can be just regional instead of national) , you might want to talk to a lawyer as this part of the law is in some flux since the federal statute is fairly new and state laws vary.
  • If the mark is not famous, the most important issue is whether there is a likelihood of confusion between your site and the trademark. This is a question about how you are using the site, not a question about the name itself. On the other hand, the court will look at the totality of the circumstances, including how different your line of business is from that of the trademark holder. Just running a little disclaimer is not inevitably going to be enough to protect you, especially if there is substantial similarity between your line of business and theirs. Yup, probably lawyer time again.
• If you have offered to sell the domain name for $$$ the court is going to suspect you of being a cybersquatter. The more the $$$, the worse it looks. It also looks worse if you initiated the contact; it's less bad if they contacted you and they first broached the subject of $$$.

Note also that all new registrations and all re-registrations in .com, .org and .net will henceforth be subject to ICANN's new take-it-or-leave-it dispute policies at the option of a complainant with a trademark seeking to wrest a domain name from a non-trademark holder.

So, don't panic. Please keep in mind that the new cybersquatting bill may obsolete some of the above. I understand the bill was amended last week and I have not had a chance to look at the latest text, which is why I'm not discussing it.

Net libertarians also worried that the ruling legitimized the idea that the government needs to step in and regulate the Internet. History suggests they have good for concern. Judge Jackson's ruling was, in fact, by far the most significant and far-reaching intrusion into Net commerce by a federal authority, and represents a landmark judicial effort to begin writing Net law.

I'm afraid these un-named "net libertarians" (who are they?) have it about 100% backwards. First, the MS case is not primarily about e-commerce. It's about old-fashioned markets. How many copies of Windows are sold online? Second, there's little or nothing in the decision relevant to regulation of the Internet except in the sense that businesses located in the US that happen to do Internet-related work are of course subject to the same (antitrust, and other) laws as everyone else. This was already pretty clear -- just as making phone calls doesn't allow you to contract out of local law, so too with a modem. (Yes, you can do regulatory arbitrage but that takes more than one jurisdiction.)

What this case shows is that it is not really that difficult to apply traditional anti-trust principles to the software business. Which is at best a small part of the e-commerce business.

Attention "net libertarians": Want to worry about global Internet goverance? You will get more traction (although the jury is still out) by worrying about ICANN instead. Now that's a real potential (so far) for regulation of the Internet on a global basis.

The MS opinion, for all its vices or virtues, is not about "net law". It's not about the Internet. It's about old-fashined strong-armed marketing and anti-competitive behavior with (alleged) domestic, territorial, effects. And it's not the first time someone sold (gave away) well below cost to hurt a rival, either.

When ICANN was formed, its charter contemplated having a big chunk of the Board directly elected by individual "members" of the Corporation. The date for that election continues to recede, and the terms by which ordinary domain name registrants or other regular folks might get to choose representatives get more and more crabbed and limited.

The following exchange I had with Joe Sims, ICANN's Chief Counsel, regarding ICANN's proposed By-laws changes illuminates the issues. I should note that there is a fourth message from Sims that is not in the ICANN Bylaws comment archive. In that fourth message he says, among other things, the he is speaking in his personal capacity, not as an ICANN spokesperson. (As Sims authored most of the legal documents that shape ICANN, the distinction is a subtle one, but real.) When I get permission to host an HTML copy, I'll post a link to it on my WIPO/ICANN page.

• My original comment attacking the proposal
• Joe Sims's Response
• My reply to Sims.
• Sims's Latest. This link takes you to a Harvard Law School newsgroup. Look for a message from Joe Sims dated Mon Oct 25, 7:08 pm entitled Re: [names] from Michael Froomkin

Perhaps the most interesting issues to come out of this debate are, first, to what extent is it correct, as Sims argues, that allowing individuals a direct role in ICANN governance threatens to "destabilize" either ICANN or the Internet. Second, if one has strong individual representation in ICANN (or even if one doesn't) how to structure the body to avoid "capture" by a small faction. And, last but not least, how much individual representation, of what nature, does ICANN require to be legitimate?

Visit ICANNWatch.org !

Wired reports MS's denial at http://www.wired.com/news/news/technology/story/21 577.html. They say the key is only used to verify compliance with US export control laws.

Isn't this actually the business model for some companies now?
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA

For extensive evidence that you can criticize ICANN and falsify conditions (a)-(c) above (i.e. have nothing to gain, have some sanity, and probably too much education), see The ICANN Watch site organized by yours truly, David Post and David Farber.

Best article I have seen on the causes of bloat in MS products is R.A. Downs's analysis of bloat in RegClean Version 4.1a Build 7364.1. In a program of 818KB, he finds 350KB (that's over 40% of "bloat," including unused cursors, dialogs, string entries, tool bar, menus, icons, etc. You might quibble with some of what he counts, but the basic point is powerful.

ICANN = the good guys? I hope so. But the initial signs are much less encouraging than I would have expected given the stellar composition of the Board. ICANN has chosen to meet behind closed doors. The Board, with the sterling exception of the Chair, appears to take no part in the relevant mailing lists, and generally shows no sign of being aware of the very great concerns some of their actions are causing.

The main task of the "interim" Board was supposed to be to set up a fair means of choosing successors. This is going very slowly. Meanwhile two sorts of nearly irrevocable decisions are being made:

1. A structure for election of the Names Council is being created that gives disproportionate weight to trademark and copyright interests. To date, the only method for individuals to have a voice is awaiting to be born (meanwhile the rump Names council sets working groups in motion to make policy recommendations on proposals which favor TM interests and disfavor indiviudals). And, oh yes, the acadmic users of the Internet -- the pioneers -- have no place at all in this structure
2. The Interim Board is rushing ahead on policy issues, including the WIPO report. While the Board's approach to WIPO so far fails to disprove the hypothesis that they will reject the worst parts, procedurally there's something worrying and unsavory about having a group selected by a mysterious and as-yet-unexplained means, whose task it was to find a fair means to pick succcessors and get out of the way, making critical policy decisions that will be almost impossible to reverse. [On why the WIPO report is an issue, see my WIPO page.]

In short, if it does turn out badly, and it could, it will be too late to do much about it. Other than route around it of course. But that will be hard, at least in the short run, unless the tools are built and deployed before one knows if they are needed.

1. I don't agree and
2. by reading my message they agree to send me $10 to the address below.

1. a warm fuzzy feeling, followed by
2. receipts from their 'bot, followed by
3. form letters saying that because I didn't mention a specific domain they cannot help me (so next time I mention one, ok?), and
4. something to show a jury in the very unlikely chance I ever want to.

If I get really motivated, next month I send a request for payment with interest, but probably not. Life is short....

By way of background (missing from the article from InfoWorld), UCITA was until recently the proposed UCC 2B. The proposal to add a provision to the Uniform Commercial Code to deal with software licenses was until recently a joint project of the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The proposal was so awful, and attacked by so many people (especially legal academics!) that the ALI pulled out. This is unusual.

NCCUSL historically is less likely to throw roadblocks in the way of a proposal once a drafting committee says it's done. On the other hand, this one is so controversial, for so many, many reasons, that there is a little hope that the steamroller can be stopped. Uniform Commissioners are political appointees, usually by state governors, so if you or your firm happens to have any pull in your state, a word to the (un)wise might help. Furthermore, even if it passes NCCUSL it then has to be adopted state-by-state, so there's another chance to fight it.

For my account of why an earlier draft was bad for e-commerce (the latest draft is bad in slightly different ways) see 2B as Legal Software for Electronic Contracting -- Operating System or Trojan Horse?.

The Ninth Circuit's decision in the Bernstein case is a major victory for the First Amendment in the computer age. It confirms that just because you use specialized tools to speak, like a computer, or a specialized language to communicate, like a programming language, you do not therefore put yourself outside the scope of the First Amendment. These propositions are fundamental to free speech, and to freedom of association, in the computer age. And while it is wonderful that the Court of Appeals ruled as it did, it is a pity that the Justice Department's stonewalling on this issue made such a ruling necessary in the first place.

Today the Ninth Circuit-the court of appeals with jurisdiction over Silicon Valley-holds that cryptographic source code is protected speech. The court held, correctly, that the US Government's unconstitutionally prevents the export of cryptographic source code with a system of speech licenses. The court held that preventing cryptographers such as Daniel Bernstein from using the Internet to share their work with colleagues around the world is an unconstitutional prior restraint on speech, one hedged with completely inadequate procedural safeguards.

This decision is especially important because U.S. government representatives openly admit that they have been using the export control laws to retard the domestic use of cryptographic software. This decision, which I hope will be upheld by the Supreme Court, will be the first step towards greatly increased use of cryptography in domestic products, and enhanced personal privacy for all Americans.

Perhaps the most important aspect of this decision is that the appeals court recognizes the critical connection between the regulation of cryptography and our modern lives:

"we note that the government's efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately."

The court was thus right on target when it noted that the regulation of cryptography "touches on the public interest broadly defined.".

A second important aspect of this decision is that the court recognized the effect of technical change on the first amendment, and rejected suggestions that just because speech has side effects it somehow loses its protected status:

"the government's argument, distilled to its essence, suggests that even one drop of "direct functionality" overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. The distinction urged on us by the government would prove too much in this era of rapidly evolving computer capabilities. The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its "functional" aspects. The first Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution."

If the government appeals, the issue is very likely to go to the Supreme Court for resolution given the government's claim that national security might be affected. It is likely that the government will request and receive a stay order if it chooses to appeal. (An appeal to an en banc panel of the 9th Circuit is also possible.)

Congratulations to Cindy Cohn and the rest of the Bernstein legal team!

More information on Cryptography and the Constitution

More information on government regulation of cryptogragpy

More information on the link between cryptography, e-cash, and privacy
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA

The World Intellectual Property Organization's Final Report on "The Management of Internet Names And Addresses: Intellectual Property Issues" is in all but one major respect a substantial improvement on the Interim Report.

• The attempt to define "abusive registrations" represents a good-faith effort to define cybersquatting. While this new definition will no doubt benefit from public comment and discussion, it seems to hew closely to the definitions evolving in the various courts that have considered the issue.
• Unfortunately, the Final Report leaves essentially unchanged the proposals in the Interim Report regarding the proposed treatment of globally famous trademarks. It proposes a baroque ad hoc quasi-judicial procedure based on vague (and in once case prejudicial) criteria to define when a trademark is sufficiently internationally famous to be granted special privileges on the Internet that the mark would not currently have under law. At present there is no agreed definition of a globally famous mark, although WIPO-sponsored panels have been seeking formulate a definition for years. Furthermore, the WIPO proposal rejects imposing any upper limit on the number of trademarks that may be declared "famous," perhaps because it is impossible to predict how many marks will qualify.
• As noted regarding the Interim Report, parties who lose their domain names under the proposed dispute resolution procedure and believe the arbitrator erred may find it difficult to find a court capable of hearing their claim. Because the Final Report restricts the dispute resolution procedure to a much narrower class of cases than did the Interim Report, one can expect that there will be many fewer such cases than initially feared - but not zero.
• In addition, there are a number of relatively minor ambiguities and possible errors relating to material which appears for the first time in the Final Report. This material will benefit from public review; and in some cases some of this material may need minor revision.
• While not strictly an intellectual property issue, and without wishing to minimize the complexity and importance of the real issues that remain to be determined, the Final Report's discussion of new gTLDs and especially the creation of a new privacy-enhanced gTLD for non-commercial uses, is a less ringing endorsement than one might have hoped.

The World Intellectual Property Organization's Final Report on "The Management of Internet Names And Addresses: Intellectual Property Issues" is in all but one major respect a substantial improvement on the Interim Report.

• The attempt to define "abusive registrations" represents a good-faith effort to define cybersquatting. While this new definition will no doubt benefit from public comment and discussion, it seems to hew closely to the definitions evolving in the various courts that have considered the issue.
• Unfortunately, the Final Report leaves essentially unchanged the proposals in the Interim Report regarding the proposed treatment of globally famous trademarks. It proposes a baroque ad hoc quasi-judicial procedure based on vague (and in once case prejudicial) criteria to define when a trademark is sufficiently internationally famous to be granted special privileges on the Internet that the mark would not currently have under law. At present there is no agreed definition of a globally famous mark, although WIPO-sponsored panels have been seeking formulate a definition for years. Furthermore, the WIPO proposal rejects imposing any upper limit on the number of trademarks that may be declared "famous," perhaps because it is impossible to predict how many marks will qualify.
• As noted regarding the Interim Report, parties who lose their domain names under the proposed dispute resolution procedure and believe the arbitrator erred may find it difficult to find a court capable of hearing their claim. Because the Final Report restricts the dispute resolution procedure to a much narrower class of cases than did the Interim Report, one can expect that there will be many fewer such cases than initially feared - but not zero.
• In addition, there are a number of relatively minor ambiguities and possible errors relating to material which appears for the first time in the Final Report. This material will benefit from public review; and in some cases some of this material may need minor revision.
• While not strictly an intellectual property issue, and without wishing to minimize the complexity and importance of the real issues that remain to be determined, the Final Report's discussion of new gTLDs and especially the creation of a new privacy-enhanced gTLD for non-commercial uses, is a less ringing endorsement than one might have hoped.

I agree with the criticisms about the UN and WIPO overstepping their bounds. However, I disagree with the sense that they cannot do anything harmful, and should be ignored. WIPO policies have been widely adopted, and when adopted by domain name registries, they can become as effective as though they were the law.

The difference here is that these rules are being promulgated by people accountable to no constituency except, of course, the special interests that sponsored their international activism. (This translates about 95% to large multinationals seeking to end-run enforceability limitations of the U.S. trademark laws.)

Understanding that it is highly likely that WIPO policies can become domain name dispute resolution policies; and that these policies, if applied, can effectively create quasi-judicial rights in gross for these well-heeled interests that they could not obtain otherwise (often for which the loser probably has no meaningful legal recourse in the courts of any nation) something must be done.

A few brave souls have been active in fighting the good fight, and have been desperate to get someone, anyone, to get interested enough to chime in and comment. Michael Froomkin at the University of Miami has been one of the leaders. He writes about the details at:

http://www.law.tm/

I would advise anyone with an interest to get "active." Whatever your thoughts about the propriety of international government, the non-governmental nature of the internet makes it quite vulnerable to this kind of de-facto policy-making, which policy-making can in time become effective as though it were the law.