Robert Elz wrote:
> 
> I have been hardly able to believe some of the remarks that
> have been sent following Peter Gerrand's posting (and in it)
> of Dec 20.
> 
> One quite reasonable question from from Geoff Huston ...
> 
>     Precisely what are you trying to protect, and from whom?
> 
> which resulted in the response ...
> 
>     As I see the COM.AU Bureau's primary role as being to help its
>     customers,
> 
> which raises an issue so important in the way that all this
> is being done that I can't help but break my usual silence on
> these issues and make some comments.
> 
> That should be, if anything, a minor, very minor, role of a DNS
> registry (domain name administrator - whatever you like to call it).
> 
> The primary responsibility of these people should be to protect
> the DNS, conserve its resources, and see that it is properly
> managed and run.   That is, acting in the best interests of the
> DNS itself, and of the Internet as a whole, is unquestionably the
> number one priority (or should be) of anyone managing a portion of
> the DNS tree.
> 
> Yes, this extends into parts of the tree allocated to individual
> organisations, and even departments within organisations, etc,
> though at this level the global impact tends to be fairly limited,
> and the responsibilities less - though even at that level names
> allocated should be in accordance with all relevant syntax
> requirements (eg: if mail is expected, then '_' is not a legal
> character - nor is it for many other uses), and all servers should
> be checked to be correctly running, or corrected, etc.
> 
> At the higher levels of the tree (closer to the - inverted - root)
> the responsibility grows however.  There it is, and must be, as
> there is no-one else, the responsibility of the administrators of
> the various domains to see that the DNS is kept in a state where
> it will still be useful in 50 or 100 years (or more).  That is,
> where applicants then can still obtain domain names that are useable
> and make sense in much the same way as then can now.
> 
> The domain administrators should see themselves as more akin to
> bodies like the forestry commissions, and river water authorities,
> etc, with an overriding responsibility to the resource they control,
> and then within that the responsibility to give even, fair, and
> balanced service to the users of the resource they control, within
> the constraints imposed by the needs for conservation.
> 
> On Peter's proposed changes ...
> 
>   For the 17 January meeting of the DNS Forum in Sydney, ...
> 
> I think Jan 17 is much too soon to decide upon any
> of this, there needs to be more (outside the holiday period)
> discussion, and it also needs to be determined that the DNS
> Forum is indeed the appropriate (widely representative) body
> to be making these kinds of decisions.  That certainly is not
> yet certain, and may not be Jan 17 - when the cast of attendees
> is known that may be better able to be determined.
> 
> Then on specifics...
> 
>   A1: that Rule 5, that excludes any word 'that is a common English
>   dictionary word, such as "infinity"', be amended to except (i.e. to
>   allow to be registered) common words that are distinctive words within
>   the registered company names or registered business names or trademarks
>   belonging to the applicant organisation. In each case the company name
>   or business name or trademark must be registered in Australia.
> 
> First, totally forget trademarks.   Domain names identify the
> organisations (or individuals) to whom they are assigned.
> Trademarks are labels for products (in almost all cases, in the
> others they're almost always graphic marks of one kind or another
> and not even vaguelly suitable as a domain name - eg: the Macdonalds
> golden arches), or they are also organisation names, and the
> trademark status is irrelevant.
> 
> Second, while I believe a change in this area might be a good idea,
> I would start (and probably end) with a much smaller change, and
> allow the rule to be ignored in the one case where a company name
> is Foo P/L (or Foo Ltd, etc).  That is, such a company could register
> foo.com.au regardless of whether foo is a common word.   This is
> the one really hard case that the current rule has exposed, and
> where I would agree that a change should be made.   Otherwise
> deciding what is a "distinctive" word within the company name,
> etc, seems like another rat hole.
> 
> Then as for the rationale....
> 
>   The argument for this change is that (i) too may exceptions to the
>   current rule were made under a previous DNA regime for it to be fair to
>   continue to apply it to new applicants,
> 
> This is so absurd as to be barely worthy of comment.   What it
> is saying is that the policy can never be made more strict - ever -
> as there would be many previous people who had names granted under
> the easier rules.   This would be a ridiculous position to take.
> 
>    (ii) if a company has
>    already exercised initiative and precedence in protecting a common word
>    as part of its company/business name or trademark, then it should be
>    entitled to use that word as its third level domain name.
> 
> I don't see how this applies.   If my company name is "National
> Australia Bank" (Ltd or something probably, or perhaps not as
> they're a bank) exactly how have they done anything to protect any
> of the three words.  Is "national" protected from National Car
> Rentals?   Or half a dozen other "national" companies (National
> Mutual, etc).   "Australia" ???  Really!   "Bank" - every bank has
> "bank" in its name.   How could this "protection" argument possibly
> reasonably apply in this or any other case.
> 
> Of course, if a company name were just "National Ltd" then I could
> see the case, and there, as I said, I think I would allow them
> national.com.au.
> 
>   A2: that Rule 6, that excludes any 'generic English dictionary word
>   indicating a class or type, such as "photography"', be deleted
> 
> I have no real problem with that one, the rule has never really been
> used anyway.
> 
>    A3: that Rule 7, that excludes any word 'that is not an unqualified
>    Australian place name such as "Melbourne"', be made more precise, by
>    only excluding those Australian place names
> 
> Since this is a rule you invented for yourselves anyway, and which
> in general I'm not sure belongs, I certainly don't mind it being
> more precise.
> 
>    B. That to encourage fair competition between the DN Administrators for
>    COM.AU, NET.AU and BIZ.AU, that the General (Naming) Policies under
>    which they operate be identical,
> 
> That's silly - the only rational reason for having multiple
> different domain names is if they have different policies.
> Otherwise they may as well all be the same domain.
> 
> There has been one major other issue that this discussion has
> raised, which was introduced by George Michaelson, and to which
> Geoff Huston replied....
> 
>    I'm sorry, but I will ask this question. WHY? Why it is necessary to exclude
>    speculative investment in generic names? Why is it necessary to exclude
>    trading in names? Is there a sound technical reason? Is there a sound
>    public policy reason? What exactly is the the evil problem which this is attempting
>    to avoid?
> 
> which is an argument I could hardly believe.   This "prove you
> are right I win" style is appropriate when it comes from the
> defence side in a criminal courtroom, but is generally only
> otherwise seen in kindergarten playgrounds.   The whole thing could
> just as easily be turned around.   WHY?   Why is it necessary to
> allow speculative investment in generic names?  Why is it necessary to
> encourage/permit trading in names?  Is there a sound technical reason?
> Is there a sound public policy reason?   What exactly is the the evil problem
> which this is attempting to supplant?
> 
> As I indicated above, the primary responsibility of any higher
> level domain name administrator should be to preserve, conserve,
> and rationally manage the domain name space.  To do so, policies
> are a requirement.   They exist in other domains - last I heard
> secondary schools weren't allowed to register names in edu.au, only
> in <state>.edu.au (for example).   That's an entirely rational
> policy - but would be meaningless if I (representing the university)
> could simply go and register an arbitrary edu.au name, and then
> sell it to one of the wealthier private secondary schools that
> desired a name in edu.au rather than vic.edu.au (or whatever).
> (The university is always looking for new money making ventures,
> perhaps this is something for them to look into?)
> 
> Or is it claimed that com.au is somehow special, and while
> policies are appropriate for other domains they are, for some
> magic reason, inappropriate there?   If so, I think I'd need to
> see a justification.   Nothing leaps out and strikes me.
> 
> Further, a policy free zone seems to pretty much be what .COM
> has turned into, and hardly anyone believes that .COM is a
> shining example of what we should be aiming towards.
> 
> Before anyone jumps to the conclusion that I'm blind, and don't
> know that name trading both can happen already, and does - yes,
> I know that.   However, currently either the name remains with the
> original organisation technically (which impacts under current
> rules on the possibilities of them getting another name, if they
> have sold away the rights to the one they have), or the way the
> trade is accomplished is for the first organisation to relinquish
> the name, and the second (buyer) to then apply for it.   That's
> fine, as all relevant policies can then be applied, the buyer simply
> needs to be aware that there is no guarantee that the name requested
> will be approved (but if they read the policy closely, they will, or
> should, be able to work it out simply enough).
> 
> More recently Geoff Huston seems to have suggested a policy whose
> prime reason is to keep the registering authority out of the
> legal system.   If, somehow, legislative protection were to be
> granted (not that I believe it is really needed) then whatever
> constraints the relevant legislature requires in order to get
> that protection would be worthy of careful consideration.
> 
> Other than this (which seems neither necessary nor likely to me)
> attempts to keep the registry, administrators, etc, out of court
> by adding more and more policy constraints are hopeless.  None of
> that will stop someone suing.   The only thing that is going to
> do that are some cases where the litigant loses, and others then
> decide that that kind of litigation isn't worth the costs.
> As long as the policies adopted by the administrator/registry are
> clearly stated, and fair, and the administrator takes no active
> steps to do any more than register names that parties claim they
> have the rights to (in particular, never attempts to select
> amongst competing claims to a name, or to decide who has the best
> right to one), the chances are incredibly small that any damages
> will ever be awarded against the administrator.   Requiring
> that the domain name be related to the organisation name (as
> registered by someone else) can only help here.   That's a policy
> of course (though not primarily aimed at avoiding litigation).
> 
> Adding delays can't help without legislative backing.   No-one is
> required to go look at where prospective names are being advertised
> to see if one they believe they "own" (in some sense) is being
> requested by someone else, so that they don't object means nothing.
> If the name is registered, and later they discover it, they can
> still sue, just as they could have had there been no delay.  I
> don't believe they'd be effective against the registry/admin for
> anything more than an order to transfer the name.
> 
> In the most recent message Geoff asserts ...
> 
>   - a party which does not choose to act during the notification weakens
>     any subsequent case it may case to launch on the basis that
>     it did not act to protect its intellectual property at the time.
> 
> which I simply cannot believe.   For this to be true there would
> have to be implied notice (or actual notice) to the party that chose
> not to act.   Actual notice would be a simple case, to achieve
> implied notice you would have to somehow make it mandatory for
> people and organisations to go monitor this list of proposed names,
> and legislation excepted, I have no idea how that would be
> achievable (several dozen years of common use might just do it, but
> I doubt anyone wants to wait that long).
> 
> That arguments that damage would be reduced in the cases where
> someone does object within the delay period are good ones, but given
> the actual number of disputes we seem to be having (almost none)
> I really can't see the costs of the delays being justified to avoid
> this minor issue.  Real $ damages are only likely in cases where
> the party that registered the name is deliberately acting so as
> to infringe someone else's name (and only against them), and in
> that case, real $ damages are almost certainly deserved.
> 
> Finally, this scheme seems to be set out to encourage disputes.
> A simple "first come" policy (either with or without other policies)
> will generally result in the second applicant simply determining that
> the name they want is taken, the person who has taken it has as
> much right to it as they do, and going on to another choice.  Legal
> disputes are likely only when there is genuine infringement of some
> right they have.   (Ignore what is going on in .COM here, which is
> the result of the InterNIC's absurd policy to avoid itself being
> sued).   On the other hand, a "notify and wait" seems to encourage
> everyone and anyone who believes that they have any right to a
> name to object, just in case.  Clearly the administrator (registry)
> isn't going to attempt to decide the issue, so you're going to have
> lots and lots of arbitration or legal battles for almost no useful
> purpose whatever.
> 
> To take a concrete example, if under this proposed policy,
> the National Bank applied for national.com.au and that met the
> com.au policies (whatever they are, if any) then National Car
> Rentals, National Mutual (etc) would all probably object, just
> on principle, or as a conservative safety measure.  How anyone
> would decide which has the better right to "national" baffles
> me, but that would never be my problem, so I don't suppose it matters.
> Under a first come policy, the bank people get the name registered
> as they asked first (and met relevant policies, by assumption
> here), when the car rental people (etc) see the name is taken they
> look and see that yes, National Bank have a reasonable right to use
> "national", they're not infringing on our rights to the name as a
> domain name any more than they are in any other walk of life, so
> there is no point at all objecting or litigating.
> 
> I think this plan can be abandoned without a lot of anguish.
> 
> kre
Robert

Thanks for putting your comments on record.

When you say you are prepared to allow foo ltd to have foo.com.au does
this mean you'd also let eg foo sole trader have it if they were first?
It seems to me the distinction is artificial and either should be
allowed.

Given that business is back on either 2 jan or 6 jan is there any reason
why isn't appropriate for a decision along the line above with others to
follow. The idea of continually talking about these changes and never
having a timetable to progress them seems to me to be a waste of
productive resources that ought to be going toward the other facets of
dns policy (including those you also drew attention to). I'd like to
see  agreement reached on steps which have consensus and a programme for
addressing those others where differences of opinion remain.

Thank you again for your comments. Happy new year.
Gary