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
your use is purely non-commercial (you are not even selling T-shirts), and
you have never offered to sell the domain name to anyone for anything, and
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.
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
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.
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
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.
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?
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.
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
At http://www.rinkworks.com/stupid/cs_freedisks.shtml we see: "Customer: "I just got your software in the mail...when are you sending the computer?" "Tech Support: "You don't have a computer?" Customer: "Nope. But I have the software -- just send me the computer, and you've got a new member."
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.
A. Michael Froomkin U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
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.
A. Michael Froomkin U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
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:
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
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.]
Don't get me wrong: NSI is an evil monopolist. And it's possible ICANN will come out all right in the end. But so far it is secretive, insufficiently representative, over-solicitous of corpoarate interests, and.... utterly immune to any sort of check or balance. It is immune from market discipline, cannot be sued for breaking its own rules or for bad decisions (I'm told California nonprofits can be sued only by their members and ICANN has none at present), and being "private" it is not subject to Due Process.
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.
A. Michael Froomkin U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
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.
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."
As the court recognized, the regulation of cryptography concerns us all in our everyday existence, at a time when the ability of governments and others to observe our everyday activities is at an all-time high. Only the deployment of consumer cryptography offers the ordinary citizen the technical means to attempt to carve out a zone of privacy in an increasingly monitored world. The citizen's right to protect privacy in this manner implicates not just the First amendment but also the Fourth amendment and the right to speak anonymously..
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!
No! Wait! That's my critique of the OLD draft. The new draft is quite a lot better. It fixes several -- but not all -- of the problems I identified in my 50+ page critique of the Interim Report. For my initial take on the Final Draft see here. More detailed comments will appear on my WIPO Comments Page Real Soon Now. Here's the key part:
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.
A short explanation of why you should worry about the World Intellectual Property Organization's proposals for adjudicating conflicts between trademarks (plus other things) and domain names can be found in my Quick Guide to Flaws in WIPO's RFC3 . The comment deadline on RFC 3 has been extended to this coming Friday, March 17, so it's not too late to be heard. In theory, the more DN's there are, the more potential for conflict. In fact, if testimony in DC last week is to be credited, there are about 80 alleged TM/DN conflicts for each case reported to NSI. This is credible since NSI policy applies only to exact string conflicts and not near-misses. But since there were 900 invocations of the NSI policy in 1998 (down from 1997), this means that the DN/TM conflicts represent about.035% of the new registrations in the namespace. Yes, point zero three five percent. And less if you average over the total in existence....
Slashdot Mirror
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:
- your use is purely non-commercial (you are not even selling T-shirts), and
- you have never offered to sell the domain name to anyone for anything, and
- you are not guilty of tarnishment
then your legal position is very strong.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.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
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.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
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.
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 !
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
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.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
"Customer: "I just got your software in the mail...when are you sending the computer?"
"Tech Support: "You don't have a computer?"
Customer: "Nope. But I have the software -- just send me the computer, and you've got a new member."
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.
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
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.
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
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:
- 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
- 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.]
Don't get me wrong: NSI is an evil monopolist. And it's possible ICANN will come out all right in the end. But so far it is secretive, insufficiently representative, over-solicitous of corpoarate interests, andIn 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.
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
- I don't agree and
- by reading my message they agree to send me $10 to the address below.
So far all I have to show for it isIf I get really motivated, next month I send a request for payment with interest, but probably not. Life is short....
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
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?.
A. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
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:
As the court recognized, the regulation of cryptography concerns us all in our everyday existence, at a time when the ability of governments and others to observe our everyday activities is at an all-time high. Only the deployment of consumer cryptography offers the ordinary citizen the technical means to attempt to carve out a zone of privacy in an increasingly monitored world. The citizen's right to protect privacy in this manner implicates not just the First amendment but also the Fourth amendment and the right to speak anonymously..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:
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
Here's the key part:
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.
-- Michael FroomkinA. Michael Froomkin
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
A short explanation of why you should worry about the World Intellectual Property Organization's proposals for adjudicating conflicts between trademarks (plus other things) and domain names can be found in my Quick Guide to Flaws in WIPO's RFC3 . The comment deadline on RFC 3 has been extended to this coming Friday, March 17, so it's not too late to be heard. .035% of the new registrations in the namespace. Yes, point zero three five percent. And less if you average over the total in existence....
In theory, the more DN's there are, the more potential for conflict. In fact, if testimony in DC last week is to be credited, there are about 80 alleged TM/DN conflicts for each case reported to NSI. This is credible since NSI policy applies only to exact string conflicts and not near-misses. But since there were 900 invocations of the NSI policy in 1998 (down from 1997), this means that the DN/TM conflicts represent about