Governing the Internet

By Rob Hassett

Casey Gilson P.C.

Six Concourse Parkway, Suite 2200

Atlanta, GA 30328

(770) 512-0300

http://www.internetlegal.com

 

This article was prepared for the seminar on Advanced Internet and Computer Law sponsored by the National Business Institute scheduled for October 29, 1998 in Atlanta. This advanced level article addresses such questions as who “owns” the Internet, the current role of the U.S. government, and the future of the domain naming system. (25 pages)

ACKNOWLEDGEMENTS

The writer wishes to thank the following individuals for providing information and/or assistance in preparing these materials:

1. Jay Fenello, who is the President of Iperdome, Inc. (http://www.iperdome.com) Jay is currently serving as a member of the Steering Committee for the International Forum on the White Paper (IFWP) to assist in setting up the structure for a new domain name system. (http://www.ifwp.org)

2. Bruce Hassett, a brother of the writer, who is currently employed with GTE Internetworking. GTE acquired BBN, including the BBN Planet network, approximately one year ago. (http://www.bbn.com)

3. Lynn Hassett, the writer’s wife, who is an attorney in the same law firm as the writer.

4. The staff of the Competitive Pricing Division of the Federal Communications Commission (FCC) Common Carrier Bureau. (http://www.fcc.gov)

5. Ellen Rony, who is a co-author of “The Domain Name Handbook.” (http://www.domainhandbook.com)

6. Richard Sexton, who participated in some aspects of the development of the Internet.

I. INTRODUCTION

To understand the current operation of the Internet and the controversies concerning the domain name system, it is necessary to understand the relevant history.

II. ORIGINS OF THE INTERNET

A. ARPA.

In 1957, the Soviet Union launched the first man-made satellite, Sputnik, which surprised most Americans who had assumed that the United States was far ahead of the Soviet Union technologically. As a consequence, President Dwight Eisenhower established the Advanced Research Projects Agency (“ARPA”). ARPA was set up as an agency of the Department of Defense but was established for the purpose of promoting scientific research.(2)

ARPA sponsored computer research and development at major universities throughout the country including research into time-sharing systems, computer graphics and improving computer programming languages. At the time, computers were extremely expensive and the sharing of resources was difficult not only because there was no network but because the computer languages, protocols, etc. were not compatible. In 1966, officials at ARPA decided to set up a network among computers at major universities. This network became known as the “ARPANET.”(3) The contract to build ARPANET was awarded to a small consulting firm in Boston, Bolt, Bernek & Newman (which of course later established the “BBN Planet” network). BBN set up a network information processor (“NIP”) at each participating university. The NIP’s were used to send and receive all messages.(4) Performance testing was contracted to the Network Measurement Center at UCLA. Two individuals that became very prominent in the construction of the Internet, Vince Cerf and Jon Postel, were students at UCLA that worked part-time at the Network Measurement Center.(5) These individuals, as well as many others, overcame significant technological obstacles in making the ARPANET operational. Jon Postel retains a central role in the operation and development of the Internet to this day.

B. Network Working Group.

One of the problems that the universities had to deal with was that although connections could be made through the ARPANET, it was necessary to agree upon protocols to allow communications between the incompatible computers at the various universities. Representatives from the various universities met and formed an open group called the Network Working Group or “NWG.” Possibly because they had no authority, the students followed the pattern set by one of their members who wrote up minutes of their first meeting and called minutes of all of their meetings “Requests For Comments” to set the tone that anyone could contribute.(6) By 1972, Jon Postel had become the editor and distributor of the Requests For Comments.(7)

C. Other Networks.

As time went on ARPANET became obsolete. The network for military computers was taken over by the MILNET network and the academic links were taken over by the network established by the National Science Foundation (the “NSFNet”).(8) Other commercial networks were also set up.

D. TCP/IP.

In order to link the different networks, it was necessary to come up with a new advanced set of protocols which ultimately became the Transmission-Control Protocol and the Internet Protocol now referred to as “TCP/IP”. An individual named Bob Kahn, while employed by ARPANET and working with Vince Cerf, developed the first version of TCP which led to the ability to connect multiple networks of multiple computers.(9)

E. Current Configuration of the Internet.

Currently, the Internet is a network of networks. With few exceptions such as MILNET, which is operated by the U.S. Military, the networks are privately owned. GTE currently owns and operates the BBN Planet network. WorldCom owns and operates the UUNET network. AT&T, MCI, Sprint and many other companies own and operate other networks that are part of the Internet. The networks, which include all of those referred to in the previous sentence, that provide high capacity nationwide connections are also known as “backbones.”

Access to the servers and information that reside on all of the networks that form the Internet can be made through any of those networks. Such access can be obtained through the larger national (and even International) networks (run by the Tier 1 providers such as GTE, UUNET, MCI, etc.), the smaller regional networks (such as Erols, BellSouth, etc.), or the local ISP’s which buy their network transit from one of the larger providers.

How does a computer connected to any one of the networks that forms the Internet successfully connect to a computer located on a different network? The Internet works because the separate networks that form the Internet connect, or peer, with each other. There are two types of peering: public and private.

Public peering, where many networks connect to each other through a large network switching system, occurs at several different public exchange points around the world. The concept of public peering points was originally established by the National Science Foundation. There are many public exchange points. Some of the more well-known ones are MAE East (Washington, D.C., operated by MFS), Sprint NAP (northern New Jersey operated by Sprint), MAE West (Palo Alto, operated by MFS) and LINX (London). Virtually all of the networks that make up the Internet peer at one or more of the public exchange points. Because of the tremendous traffic, serious bottlenecks can occur at these exchange points.

With this in mind, many of the larger providers have established private agreements among themselves to establish private peering — i.e., transfer of traffic via a dedicated, high-speed circuit between two companies’ networks, thereby avoiding the bottlenecks at the public exchange points. Companies will only agree to peer with those companies that they expect will receive as much data as they send. With companies like UUNET and GTE, that is not a problem because both networks will dump about the same amount of traffic onto each other. However, if one company only has web sites (i.e., does not offer dial-up access or direct-connect business access), then that company will tend to dump a lot more traffic on the other networks than the reverse. This imbalance has resulted in certain networks refusing to privately peer with certain other networks.(10)

It is possible to trace the route of one’s packets(11) from one’s own computer to most web sites (tracing to some of the larger ones is blocked). First, connect to your Internet service provider, bring up a DOS prompt and at the DOS prompt type in: “tracert www.[second level domain name (such as "internetlegal")].[top level domain name (such as "com")]. From Atlanta it is evident that MindSpring is connected directly at least to “alternet” which is “UUNET.”

F. Initial Domain Naming System.

In 1982, Jon Postel and others developed a new standard for email which they named “simple mail transfer protocol.” As the number of computers connected to the Internet multiplied, it was necessary to develop a new addressing scheme. A group of engineers led by Paul Mockapetris, who was at that time employed by the Information Sciences Institute at the University of Southern California in Marina del Rey (“ISI”), and including Jon Postel, who was at that time and still is employed by ISI, and Craig Partridge, who was at that time employed by BBN, developed what is now referred to as the domain naming system (“DNS”). It was eventually decided that the initial generic top level domain names would be: (12)

(1) “edu” for university sites;

(2) “gov” for government sites;

(3) “com” for company or commercial sites;

(4) “mil” for military sites;

(5) “org” for non-profit organization sites;

(6) “net” for network service providers; and

(7) “int” for international treaty entity sites.

III. Ownership.

From the above, it is clear that almost all of the networks of the Internet as well as the exchanges are owned by private companies just as are most telephone facilities. TCP/IP specifications were developed by government employees. Consequently, any copyrights in those specifications are in the public domain.(13) Assuming the protocols constituted statutory subject matter and met other requirements, the United States could have owned patent rights in these protocols provided the U.S. had filed an application within the required one (1) year period, but apparently did not do so. TCP/IP is therefore available without restriction, although there may be proprietary rights in derivative versions.

IV. FCC Regulations.

The Federal Communications Commission (“FCC”) has the authority to regulate “interstate and foreign commerce in communication by wire and radio.”(14) The state public utility commissions have the right to regulate such communications that are intrastate.(15) Prior to enactment of the Telecommunications Act of 1996, the FCC made a distinction between “basic” and “enhanced” communication services. Basic services were standard voice transmission services. Enhanced services were defined as:

services, offered over a common carrier transmission facilities used in interstate communications, which employ computer processing applications that act on the format, content, code, protocol, or similar aspects of the subscriber’s transmitted information; provide the subscriber additional, different, or restructured information; or involve subscriber interaction with stored information.

Examples of enhanced services are protocol processing, alarm monitoring, voice messaging and electronic publishing as well as the provision of access to data networks such as commercial online services and the Internet.(16) Providers of basic services were considered to be communications common carriers. Common carriers are prohibited from:

Unreasonably denying requested services or from unreasonably discriminating in the terms and conditions of service, and are subject to various other requirements and fees.(17)

Although the Telecommunications Act of 1996 categorizes services as “telecommunications” versus “information,” the FCC has, for the most part, continued to apply the same dichotomy construing what were considered “basic” services as “telecommunications” services and construing what were referred to as “enhanced” services as “information” services. For telecommunications services, other than those provided over the Internet as discussed below, the FCC requires that tariffs be filed. Tariffs are documents provided to the FCC which set forth the terms, rates and conditions under which services will be provided. Telecommunications service providers are required to file tariffs for ordinary telephone services and for the portion of frame relay services which involve transport, but not for the protocol relay or addressing component. Copies of tariffs are available for a fee from ITS, Inc. (http://www.itsi.com).

Using the Internet and encryption software, it is possible to set up a virtual private network that, although in many cases where multiple sites are involved would be significantly less expensive, provides functionality that can, many times, be substituted for a private frame relay network. To this date, the FCC has chosen not to require that tariffs be filed on or to impose universal access charges (which are imposed generally on telecommunications services) either for services of Internet access providers or for transmissions over the Internet backbones.(18)

V. Government Legacy Functions.

A. Initial Structure.

There are four (4) functions essential to the operation of the Internet that continue to be provided under contracts with agencies of the United States government.(19)

(1) The assignment of numerical addresses (Internet Protocol or “IP” numbers) to Internet users. Every computer while connected to the Internet is assigned a unique IP number. Numbers can be assigned dynamically to dial-up users so that any user has a unique IP number only during the time of the connection. Therefore, to provide dial-up access, ISP’s only need to have enough IP numbers to equal the number of users at any one time. Each second level domain name requires a permanent IP address. Without a change of technology, there cannot be more than four (4) billion unique numerical addresses. One-third (1/3) of those have already been assigned. The replacement of the IP protocol with proposed IPv6 as currently configured would allow for a virtually unlimited number of IP addresses.

(2) Management of the system of registering names for Internet users. This includes the system of assigning top-level domains, second-level domains, and so on. This function, combined with “(3)” below, is referred to as the “domain naming system” or “DNS.”

(3) The operation of the root server system. There are thirteen (13) root servers including the “A” root server operated by Network Solutions, Inc. (NSI). The “A” root server contains what is supposed to be the authoritative data base of the top level domain name servers including the servers for the international top level domain names and the servers for each of the country specific domain names. All the other root servers point to the “A” server for this information. The U.S. government plays a role in about half of these root servers. From letters I have seen, the other root servers are operated by volunteers who believe that they were given that authority by Jon Postel and/or his organization, IANA.

(4) Protocol assignment. This involves management of the protocols that are used to operate the Internet.

Initially, ARPA (the name was changed to the “Defense Advanced Research Projects Agency” or “DARPA” in 1984) contracted to have the domain name functions administered by the Stanford Research Institute (SRI). (20) Through a contract with DARPA, in 1987 SRI also took over the assignment of numerical addresses from ISI. ISI continued to oversee the operation of the root server system and the protocol assignments.

B. IANA.

Jon Postel was in charge of the Internet services provided by the Information Sciences Institute. Mr. Postel named his group at ISI the: “Internet Assigned Number Authority” or “IANA.”(21) After the responsibility for the international domain names and IP numbers was transferred to the Stanford Research Institute, IANA retained responsibility, under contracts with DARPA, for the other functions referred to above and later with the National Science Foundation, for managing the .us top level domain and registering other country specific top level domains. Eventually, IANA again assumed responsibility for assigning IP numbers and assigned blocks of Internet protocol numbers to three (3) non-profit organizations, APNIC for the Asia-Pacific region, RIPE NCC for Europe, and ARIN for the western hemisphere and South Africa(22) and also to a number of profit corporations for reassignment including @Home for the cable industry, AT&T and BBN Planet. Each of these five (5) organizations act as registries for the IP numbers they assign.

There has been a lot of misinformation about where IANA’s authority came from, but the reality is that it was always through government contracts.

The IANA home page reads:

The IANA is chartered by the Internet Society (“ISOC”) and the Federal Network Council (“FNN”) to act as the clearinghouse to design and coordinate the use of numerous Internet Protocol parameters. (See, http://www.iana.org.)

This information has been quoted and accepted by the media. None of it is true. As is pointed out in The Domain Name Handbook, supra, at 123, ISOC and FNC didn’t exist in 1988 when IANA was first formed. The authors of The Domain Name Handbook, supra, quote an email they received in response to a questioning of this authority from Anthony Rutkowski, the former president of the Internet Society. Mr. Rutkowski’s letter said in pertinent part:

Just to note – in case you’re writing history here – that although Jon and some others include this rendition, there is no such thing as a charter by either the Internet Society or the FNC. I was running the Society at the time that Jon distributed an e-mail message to the Society Board that was entitled “Charter.” He was told in subsequent messages that this meant nothing. Neither the Society as a non-profit corporation, or the FNC as an interagency committee [of the United States government] are in the business of “chartering.” What Jon prepared was an excerpt of the description of the activity for which he is funded by NSF. It’s an important function – but that is what it is – an NSF funded editor activity.

C. NSF.

In any event by the end of 1989, what had been the ARPANET had been replaced by NSFNet and certain regional networks.(23) In 1991, Congress passed the “High Performance Computing Act” which authorized NSF to provide computing and network infrastructure. At that time, NSF assumed responsibility for the registration of domain names. NSF redelegated the function of registering domain names from SRI International to Government Systems, Inc.(24) Finally, NSF entered into an agreement dated January 21, 1993 transferring domain name registration activities for the international top level domain names to Network Systems, Inc. (NSI).(25)

According to Article 7 of the agreement, NSI was to provide these services through September 30, 1998. So here we are in September of 1998, when I am writing this paper, and it is still not clear who will administer the international top level domain names after September 30. It also isn’t clear who will be responsible for allocating blocks of numerical addresses, managing the root server system and managing the Internet protocol suite in the future.

D. NSI.

NSI is, understandably, fighting hard to try to retain the current top level international commercial names that it administers: .com, .net and .org. Among other arguments, NSI claims that it has ownership rights in at least a portion of the DNS database.(26) The U.S. government would argue that since NSI has been administering these top level domain names under contract with NSF, NSI hasn’t acquired any rights in those top level domain names.(27)

By Amendment 4 to its contract with NSF, NSI was, in September of 1995, permitted to start charging $100 upfront for the first two (2) years and $50 per year thereafter for all second level domain names that it issued and to retain seventy (70%) percent of those funds.(28) Beginning April 1, 1998, NSI was no longer required to remit thirty (30%) percent of its funds as directed by NSF and dropped its fees to $70.00 for the first two (2) years and $35.00 per year thereafter.(29)

NSI has had to deal with a number of lawsuits relating to domain name disputes. NSI issued its first domain name dispute policy, apparently for the purpose of protecting NSI from lawsuits, on July 28, 1995. Revisions were issued on October 23, 1995 and September 9, 1995.(30) The most recent revision is dated February 25, 1998 and is available at http://rs.internic.net/domain-info/nic-rev03.html. This policy requires that any registrant agree to defend, indemnify and hold harmless Network Solutions and its officers, directors, employees and agents for any loss or damage relating to registration of a domain name. Since most web site registrants do not sign this document, much less personally fill out any of the information or even go to the site (this is ordinarily handled by the ISP for the registrant) this indemnity is likely enforceable, if at all, only against a very small percentage of registrants.(31) In the earlier version there was an arbitration clause that any disputes were subject to arbitration in San Diego, California, where NSI’s parent corporation was located. However, that arbitration procedure is no longer included in the latest domain name dispute policy.

The newest policy favors claimants to domain names that have registered their domain name on the principal register of the United States Patent & Trademark Office or the equivalent of any other country.(32) Where the owner of a registered mark provides written notice to a domain name registrant that the registrant’s domain name violates the trademark rights of the complainant, the domain name registrant may send a copy of such notice to NSI. If the registration predates the date the domain name registrant obtained the domain name, NSI may request proof that the registrant also has a registered trademark or service mark that pre-dates the date of the notice. If no proof of prior registration is provided, and assuming no court action is filed within thirty (30) days of NSI’s request for proof of registration, NSI may then put the registrant’s domain name on hold. Just to show how absurd a policy giving priority to registered marks can be, note that although registration in the United States Patent & Trademark Office takes an average of ten (10) months, registration in Tunisia can be completed in a matter of days and doesn’t require proof of use or intent to use the mark in Tunisia or anywhere else. See, http://www.domainprotect.com.

E. Policy Oversight Committee.

Over the years, the Network Working Group appears to have been replaced by the Internet Society (“ISOC”), the Internet Activities Board and other groups in which many internet insiders including Mr. Postel, are prominent. As more and more of the .com and .net second level domain names were taken, it became apparent that additional international top level domain names should be available. There are situations in which second level domain names can be generic such as “flowers,” “schools,” and “bricks” and there can be other situations where more than one company has a legitimate right to a particular mark such as “Delta.” Additionally, having more top level domain names would allow the grouping of web sites by category. Examples would be “.law” and “.med.” Jon Postel recognized this at least as early as May 3, 1996 when he proposed the addition of up to fifty new registries that would have the exclusive right to administer name assignments. He also recommended adding thirty new international top level domains per year for five years so that at the end the fifty new registries would each have exclusive right to administer three new top level domain names.(33)

IANA, the Internet Society (ISOC), the International Trademark Association (INTA) and other organizations elected representatives to the Internet International Ad Hoc Committee (IAHC) which was formed to review Mr. Postel’s proposal as modified by ISOC. There were eleven members elected to the committee. Mr. Postel is not listed as a member. Three of the eleven were attorneys.(34) The Committee issued its “Generic Top Level Domain Memorandum of Understanding” in which it proposed adding seven new generic top level domain names and twenty-eight new registrars who would compete among themselves to register second level domains in the generic top level domains. The committee appointed a “Policy Oversight Committee” to oversee administration of the top level domain names. The POC ultimately decided the additional top level domains should be:

.arts, . firm, .info, .nom, .rec, .shop and .web.(35)

The overall policies were set forth in the POC’s Memorandum of Understanding on the generic top level domain names space of the Internet domain name system (gtld-Mou).(36) The POC also decided that additional domain names could be added “if, in consultation with the PAB and CORE, the POC should later determine, that the interests of the users of the Internet would be best served by the creation of additional gTLDs.”

The question one would ask is what caused the POC to drop from the one hundred fifty domain names initially planned by Mr. Postel to only seven. The Committee was apparently strongly influenced by the difficulties having additional top level domain names would likely create for the owners of trademarks and service marks. The more top level domain names there are, the more opportunity there is for registration of second level domains that infringe existing trademarks and service marks. The counter-argument is that not allowing additional top level domain names to avoid wrongful use of trademarks is like prohibiting the building of additional shopping centers because that makes it more likely that service marks of existing stores will be infringed.

Although a number of criteria, including payment of $10,000, were established for anyone desiring to apply to be a registrar, and there were only certain times when applications have been allowed, more than ninety have been granted to date and it was contemplated that additional registrars will be established in the future.(37) Of course, with severe restrictions on the number of generic top level domain names, it was no longer possible to give exclusive registration rights for any one international top level domain name to any one registrant.

Probably the most controversial aspect of the POC proposal is the proposal to set up a domain name challenge panel (ACP) administered through the World Intellectual Property Organization of the United Nations (WIPO) arbitration and mediation center which is headquartered in Geneva, Switzerland. Anyone registering a second level domain name would be required to agree, as a condition of registration, that any decisions regarding the assignment, registration and use of a particular domain name would be subject to arbitration before the ACP. Then any third party could challenge a domain name holder’s right to use a domain name through this arbitration process. The POC also provided for any applicant registering a domain name to elect, at the time of registering such domain name, whether to be subject to on-line arbitration of all issues (which would include such issues as ultimate rights to use the claimed service marks and damages).(38)

F. NTIA Proposal.

In recent years, there have been individuals that have attempted to introduce additional top level domain names into the Internet root system. These groups and individuals argue that, except for restrictions needed only to avoid interfering with the proper operations of the Internet, the addition of top level domain names should be governed by the market; and whoever first offers a top level domain name and is able to attract sufficient second level domain names to make the use of such domain names financially feasible should be permitted to own and operate their own international top level domain name registries. These groups and individuals have strongly objected to the gTLD-Mou proposals arguing that the proposals would create an authoritative operation answerable to no one other than themselves and which would have no free market incentive to encourage improvements and efficiency. These individuals and groups (the free market parties) relayed their concerns and objections to Congress and the White House. Ira Magaziner, who has headed up various policy initiatives for the Clinton Administration, was assigned the responsibility for putting together a task force to deal with the issues. The National Telecommunications and Information Administration of the United States Department of Commerce headed by Mr. Magaziner came out with a preliminary proposal entitled the “Green Paper” which was published in the Federal Register on February 20, 1998 in which recommendations were made.(39) Among other things, in the “Green Paper” NTIA had proposed the formation of a non-profit corporation to be fairly representative of a variety of interested communities to take over the legacy functions; but, to avoid delay, proposed to go ahead and add five additional international top level domain names before the new non-profit corporation was formed. After receiving extensive comments, NTIA issued a second paper known as the “White Paper” on June 5, 1998, in which NTIA decided to leave the addition of any new international top level domain names to the new proposed non-profit organization and essentially urged all interested groups to get together and come up with solutions that address the needs and concerns of all interested parties subject to certain overall principles.(40) The principles were that the non-profit corporation was to be established in the United States, would assure stable, undisrupted, operation of the Internet, would be representative of all the various interests associated with the Internet, would operate in an open manner, would promote competition and would come up with balanced solutions related to the trademark issues.

As an indication of the determination of the Internet insiders with regard to the MoU-POC proposal, in January of 1998, just before the Green Paper was to come out, Jon Postel, who operates the root name server located at ISI, sent emails to the operators of the other root name servers telling them to point their servers to the ISI server bypassing NSI’s “A” root server. Six of the operators complied with this request. Mr. Postel announced that this was just a test of the server system but the timing would certainly indicate that it was a threat. The White House apparently pressured Mr. Postel into discontinuing the “test.”(41)

G. IFWP.

After the NTIA in the “White Paper” had urged all interested parties to work together on a plan, a number of trade associations representing diverse Internet interests put together a working group to attempt to reach a consensus on the structure for the proposed non-profit corporation. A committee, referred to as the Steering Committee for the International Forum on the White Paper (IFWP), was formed. Four meetings were held. The first meeting took place in Reston, Virginia on July 1-2, 1998, the second in Geneva, Switzerland on July 24-25, 1998, the third in Singapore on August 11-13, 1998 and the fourth in Buenos Aires, Argentina on August 20-21, 1998. (42) No resolution has been reached by these parties to date. Consequently, it is possible that the NSF contract with NSI, that is due to expire on September 30, 1998, may have to be continued and IANA will continue to administer the functions that it oversees for some additional time.

1 The writer is currently Co-Chair of the Subcommittee on Policies for Managing Generic Top Level Domains of the Special Committee on Trademarks and the Internet of the Intellectual Property Law Section of the American Bar Association. The views expressed in this paper are those of the writer alone.

2 Katie Hafner and Matthew Lyon, Where Wizards Stay Up Late, Chapter 1 (1996).

3 Where Wizards Stay Up Late , id. at 40-42. As stated, the original purpose of the ARPANET was to allow communication and the sharing of resources between research computers. The media has reported, and it has been repeated extensively, that ARPANET was originally set up to allow military communications to survive a nuclear strike. The development of packet data technology at Rand Corporation, which was eventually useful in setting up the ARPANET, was done for this purpose, but that was never the purpose of ARPANET. Where Wizards Stay Up Late, supra, 9-10.

4 Where Wizards Stay Up Late, supra, at 102.

5 Where Wizards Stay up Late, supra, at 141.

6 Where Wizards Stay Up Late, supra, at 144.

7 Where Wizards Stay Up Late , supra, at 145.

8 Where Wizards Stay Up Late, supra, at 245 and 249. See, also, Ellen Rony and Peter Rony, The Domain Name Handbook, 1998 at 91.

9 Where Wizards Stay Up Late, supra, at 226.

10 Kate Gerwig, Service Providers Still In Peering Dither, InternetWeek, 8/31/98.

11 A packet is a set of data organized in a specific way for transmission such as over the Internet. See, e.g., Harry Newton, Newton’s Telecom Dictionary, Flatiron Publishing (1998).

12 Where Wizards Stay Up Late, supra, at 252-253.

13 See 17 U.S.C. §105.

14 47 U.S.C. §151.

15 See, e.g., O.C.G.A. §46-2-20.

16 See, Kevin Werbach, Digital Tornado, The Internet and Telecommunications Policy, March 1997, Opp. Working Paper No. 29 available at:  http://www.fcc.gov/Bureaus/OPP/working_papers/oppwp29pdf.html.

17 See, Kevin Werbach, Digital Tornado, The Internet and Telecommunications Policy, supra.

18 See, e.g., The Federal Communications Commission Report To Congress released April 10, 1998 entitled “The Matter of Federal-State Joint Board On Universal Service.” (http://www.fcc.gov/Bureaus/Common_Carrier/Reports/fcc98067.html) Note that the United States Court of Appeals for the 8th Circuit recently held that FCC rules not allowing local telephone companies to assess access charges on internet service providers is a proper exercise of the FCC’s jurisdiction. See, Southwestern Bell Company, Bell Telephone Company, et al. v. Federal Communications Commission (U.S. Ct. App.). (http://www.wulaw.wustl.edu/8th.cir/Opinions/980819/972618.P8)

19 See, National Telecommunications and Information Administration of the United States Department of Commerce (NTIA) so-called “White Paper” entitled Management of the Internet Domain Name System dated June 5, 1998 (http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm)

20 The Domain Name Handbook, supra, at 115.

21 National Telecommunications and Information Administration “White Paper,” supra.

22 The Domain Name Handbook, supra, at 138 and 123. See, also, the NTIA White Paper, supra.

23 See Where Wizards Stay Up Late, supra, at 256.

24 The Domain Name Handbook, supra, at 126 and 127.

25 http://rs.internic.net/nsf/agreement/agreement.html

26 The Domain Name Handbook, supra, at 171.

27 The original database was, of course, transferred from Government Systems, Inc. to NSI at the direction of NSF. Under the circumstances applicable here, it is unlikely that there are any enforceable copyrights in the additions to the database made by NSI. See, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). Anyone should have the right to copy the database to the extent it is openly accessible. Whether NSI would be required to turn over any confidential portions of the database would depend on the interpretation of the NSF-NSI contract which is beyond the scope of this paper. Copyright issues for this presentation are being addressed in other materials being provided with this reference manual. For other articles about copyright law, see our law firm web site at http://www.internetlegal.com.

28 http://rs.internic.net/nsf/agreement/amendment4.html

29 See the Internic Registration and Renewal (re-registration) fees: Fact Sheet (http://rs.internic.net/fees/facts.html)

30 The Domain Name Handbook, supra, at 142.

31 Of course NSI would probably argue that the ISP is acting as an agent and, acting on behalf of its customer, has agreed to the indemnification provision by submitting the application to NSI. For the enforceability of clickwrap and similar agreements, see the portion of the paper provided by this author on Electronic Commerce relating to Online Contracting included with these seminar materials.

33 The Domain Name Handbook, supra, at 522.

34 The Domain Name Handbook, supra, at 524.

35 See the gltd-Mou Request for Comments Results – Last Update March 16, 1998 (http://www.gtld-mou.org/docs/rfc-results.htm#97-02).

36 http://www.gtld-mou.org/gTLD-MoU.html

37 It would seem that having an unlimited number of registrars competing with each other and registering the same domain names would create conflicts and disagreements about who registered a particular domain name first; however, individuals working on the issue say that with available software, this should not be a problem.

38 See the Memorandum of Understanding for the Internet Council of Registrars (CORE-Mou) a copy of which is available at http://www.gtld-mou.org/docs/core-mou.htm.

39 (http://www.ntia.doc.gov/ntiahome/domainname/dnsdrft.htm)

40 See http://www.ntia.doc.gov/nitahome/domainname/6_5_98dns.htm.

41 Rajiv Chandrasekaran, Internet Reconfiguration Concerns Federal Officials, The Washington Post, 1/31/98.

42 See http://www.geneva.ifwp.org/

The information above is provided for general educational purposes and not as legal advice. Laws in areas in which we practice change continually and also vary from jurisdiction to jurisdiction. Therefore no visitor to our site should rely on any of the articles provided for legal advice, but should always consult their own attorney regarding legal matters.

© 1998, Rob Hassett, Atlanta, Georgia. All Rights Reserved.

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