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Wednesday, Nov 22nd

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The FCC is Taking the Right Step

Today's announcement from the Commission that it intends to roll back the exercise of Title II utility-style regulation over "any person engaged in the provision of broadband internet access service" at its 14 December meeting is the right step. As a veteran of 40 years of internet related regulatory wars in the FCC and numerous other venues, the Commission's decision and the actual Rules promulgated in the February 2015 Report & Order stand among the most ill-considered application of authority and regulatory gerrymandering ever witnessed.

The Commission's first explicit consideration of the treatment of "host-to-host protocols for data communication networks" based on TCP/IP occurred when the Undersecretary of Defense's newly released Internet Protocol Implementation Guide of August 1982 was transmitted to the FCC's Office of Science and Technology that year. It occurred in part because the head of that Office and FCC Chief Scientist, Steve Lukasik, was previously the long-time DARPA Director who had authorized, funded, and controlled the development of those internet protocol technologies. I still have the material on my library shelf because I had requested it through Steve in conjunction with related policy-making proceedings at the Commission for which I was a responsible staff member in the early 80s.

The council provided by the staff and reflected in the Commission's decisions and rules at that time emphatically eschewed Title II jurisdiction over internet protocol based networks as both unwise and unreasonable. It was considered unwise because it would throttle innovation and network development. It was deemed unreasonable because this class of "connectionless networks" are simply too ephemeral and abstruse to be defined or bounded. Those views prevailed as guides of every domestic and international regulatory action for more than 30 years.

Even the US Patent and Trademark Office appellate decision in February 2000 on the long-held copyright ownership of the term "internet" by a banking consortium for their ATM protocol network, resulted in a finding that "the word INTERNET is not inherently distinctive."

Nonetheless, the unfortunate attempt to assert Title II jurisdiction over "any person engaged in the provision of broadband internet access service" via the February 2015 Order occurred as an exercise in regulatory and technological folly. The definition adopted was simply a string of undefined abstractions: "a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service." And, just to add more fuzziness to the boundary, the Commission tossed in "this term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part." One is tempted to ask "what the hell are they talking about."

The action makes no sense whatsoever from the perspective of network technological change. The most profound contemporary networking development in which industry worldwide is engaged is the virtualization and orchestration of all network infrastructure and instantiated out of cloud data centers. It is known as NFV-SDN (Network Functional Virtualisation — Software Defined Networks), including being manifested as 5G on global mobile network infrastructures with seamless wireline and cable network interoperability. End-points are also virtualized and their addresses using different transport protocols leased as needed. The entire fiction of "the Internet" goes away. FCC's Title II order only makes technological sense if one assumes that the technology is frozen in a world of Internet Kool-Aid that manifests itself only in Washington politics.

So as one of the remaining "old boys" spanning all these diverse worlds over the past six decades, it all begs the question "how did this happen." The basic answers arguably involve a certain arrogance in turning a transitory technology abstraction into an orthodox religion that is then used to attempt regulatory dominion in Washington politics. There are also gulfs among generations of people whom came onto the scene in the late 90s and beyond who had no concept of what went before, or perspective on global network infrastructures. Everything was stuffed into the internet genie bottle that solved the world's ills and deserved the FCC's Title II protection - not realizing that being regulated as a "utility" could just as well apply to large websites, search engines, or any other service relied on by the public.

So, while the internet religious may rail against the FCC's actions in three weeks, the Commission is simply eliminating actions that should never have occurred. In the process, it might also consider ditching the internet incantations altogether and talk about 5G and NFV-SDN freedom!

Written by Anthony Rutkowski, Principal, Netmagic Associates LLC

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Could SNET Become Cuba's growth (source)Community networks like SNET and are compatible with Cuba's tradition of innovation subject to constraints and socialist values.

In an earlier post, I described Havana's community network, SNET, and wondered what it could become if the government and ETECSA were willing to legitimatize and support it. Spain's provides a possible answer to that question. is said to be the largest community network in the world. It began in 2004 and has grown to have 34,165 nodes online with 16,758 planned, 407 building, 612 testing and 4,043 inactive. The nodes are linked by WiFi and fiber, and there are over 50,000 users throughout Spain. (See the chart and map below) geographic reach (source)

Community networks like SNET and are compatible with Cuba's tradition of innovation subject to constraints and socialist values. Could SNET grow to serve people throughout Cuba if it had access to ETECSA fiber and the global Internet? While community networks may not be a long-run solution for Cuba, they should be considered as an interim, stopgap means of extending affordable Internet connectivity.

For a technical description of, see A Technological Overview of the Community Network. (Send me a note if you would like to see it, but do not have access).

I also recommend the Internet Society policy brief Spectrum Approaches for Community Networks. It is a concise document with specific recommendations. For example, the section on spectrum management recommends allocating unlicensed spectrum, dynamic sharing of licensed spectrum and innovative licensing like granting licenses for social purposes or small rural communities and give examples of networks employing each of these. There are similar sections with recommendations and examples for policymakers, network organizers, and network operators. The report also has a list of links to other resources and annotated endnotes.

RFC 7962, Alternative Network Deployments: Taxonomy, Characterization, Technologies, and Architectures also provides context and spells out options for potential regulators and network developers and operators and has an extensive list of references.

I hope someone at ETECSA is reading these documents.

Written by Larry Press, Professor of Information Systems at California State University

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FCC Chair Releases Draft to Abandon Net Neutrality, Says Gov't Must Stop Micromanaging the Internet

Federal Communications Commission Chairman Ajit Pai today released a statement on his draft "Restoring Internet Freedom Order", circulated to Commissioners this morning and will be voted on at the FCC's Open Meeting on December 14. "Today, I have shared with my colleagues a draft order that would abandon this failed approach and return to the longstanding consensus that served consumers well for decades," says FCC Chairman Ajit Pai. "Under my proposal, the federal government will stop micromanaging the Internet. Instead, the FCC would simply require Internet service providers to be transparent about their practices so that consumers can buy the service plan that's best for them and entrepreneurs and other small businesses can have the technical information they need to innovate."

Former Democratic FCC chairman Tom Wheeler, who drafted the 2015 net neutrality rules has called Tuesday's move "tragic." Wheeler told the Washington Post: "The job of the FCC is to represent the consumer. If you like your cable company, you'll love what this does for the Internet, because it gives Internet service providers the same kind of control over content and price as cable operators have today."

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Transparency: The Internet's Only Currency

I don't know about you, but I am angry. I am angry with the state of the world and our incapacity to do something about it. I am angrier because, in all this, I thought that the Internet would be the place where we would see collective action at its best. But, that's not going to happen. At least, anytime soon.

Is it time to admit that the Internet has turned toxic?

No. But, it is time to ask ourselves the question: is the Internet today the one we subscribed to originally? (This place of openness, freedom, innovation and creativity — a value proposition of democracy)

When I heard earlier this month that, during the US Presidential elections, as many as 126 million people were lied to, misinformed and subjected to propaganda, I got angry. Is this the Internet I want to be part of? Of course not! And, I am pretty sure it's not the Internet that these 126 million people want to be part of. But, I also realized that we are equally responsible for the current state of how we understand the Internet.

Let's start with the fact that we chose convenience over human values. Over the past years, our ability to debate and, even hold an opinion, seems to be getting out of our hands. And, it is getting progressively worse. Social media platforms and Internet intermediaries make decisions daily on our behalf on what we should agree or disagree with. The proliferation of propaganda has chipped away our right to question the facts. Companies, with focus unrelated to content infrastructure, remove controversial domain name sites and they prevent us from engaging in an intellectual argument about extremism. In a glimpse of a second, private companies can silence the conversation. And, we accept this.

There is nothing new or shocking about this. According to Jürgen Habermas, the role social media platforms can play in democracies can be less than conspicuous. Notwithstanding their ability to destabilize authoritarian regimes, they can also wear away the public sphere of democracies. And, there are examples of social media platforms undemocratically silencing different conversations.

Although the idea of private companies determining issues like speech had always many concerned, the user sentiment was that they represented basic democratic values. It was, after all, Facebook that was celebrated for its contribution during the Arab Spring; it was Twitter that stood up to Turkey's pressures on censorship a few years ago; and, it was Google that ceased censoring its Chinese search engine, costing its exile from China.

All these acts were applauded for how these private actors represented the liberal ideals of democracy; how they advocated for everyone to express themselves and be part of this global conversation. It was fascinating. And, for many years, our faith in them seemed to be having great results. We felt safe that these companies were protecting and were standing up for our beliefs. We idolized them and, because of that, we also became complacent and we stopped paying attention.

It is not that big Internet companies lied to us or suddenly stopped supporting liberal ideals. In the end, profit took precedent. Speech got into the second priority lane. Information became diluted.

In such cases normally, the government would intervene to ensure that fundamental rights are appropriately and freely applied. But, just like us, governments are also guilty of becoming complacent. For many different issues and for years, governments have been outsourcing a lot of the decisions to the private sector. And, that is not good enough. That is fundamentally not good enough.

So, for many years, private Internet companies were loose. They grew both in size and in the services they offered to users. And, as they did that, they became more powerful and more untouchable.

But, then something changed. A lot of things changed actually. The world was exposed to a seismic geopolitical shift, where old power structures either collapsed or got refocused. The news cycle was too fast to shift from Brexit, to the US Presidential elections, the rise of far-right groups across the world, international security and secessionist trends. In all these trends, the Internet was front and center. It may not have caused any of them but it had become the place where each and every one of them would get exaggerated. Suddenly, our heroes were the villains.

Are then governments the good guys now?

Yes and no. We should all be very concerned with what has happened last year in the United States. Governments should also be very concerned, and they seem willing to tackle this. But, so far, they appear to go for patches instead of a real fix. And, they go alone. Germany recently passed legislation that demands the removal of hate speech within 24 hours. France, Italy and Germany are eager to have social media platforms remove objectionable content within 2 hours of it appearing. And, in the US, questions over whether social media ads should be regulated like TV commercials have started emerging. In the meantime, private Internet companies are looking for ways to respond to this regulatory pressure either by hiring an increased amount of staff to monitor violent content or by collaborating to find ways to fight extremism.

Neither of these approaches can work. Government regulation will not fix the problem — it will exacerbate it. Regulation will stop innovation and will create an environment where private Internet companies will over-censor in their attempt to avoid hefty fines or bad reputation. On the other hand, continuing to allow social media platforms to create their own rules uninhibited only gives them more power to 'behave' as independent state-actors.

What's the way forward? Transparency is our only currency. We should go back to the whole idea of figuring out how to hold private Internet companies accountable. Governments should join in this effort not through regulation but through a looser normative structure.

In the wake of the financial crisis, governments started demanding greater corporate accountability. This led to the Extractive Industries Transparency Initiative (EITI), a global standard for good governance of oil, gas and mineral sources, run by a multistakeholder Board of governments, extractive companies, civil society, financial institutions and international organizations.

Are we experiencing a democracy crisis analogous to the financial one? Most probably not yet. But, we are headed there the Internet is accelerating this process. Our only currency is transparency.

Written by Konstantinos Komaitis, Policy Advisor for the Internet Society

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Vulnerabilities of Weak Marks and Uncurated Websites

Dictionary words, alone, combined as phrases, modified by other parts of speech, and single letters that function as marks also retain in parallel their common associations that others may use without offending third-party rights. As a rule of thumb, generic terms are not registrable as marks until they perceivably cross a threshold to suggestive and higher classifications. Even then, if terms are capable of multiple associations (even though distinctive in a trademark sense) and there is no evidence of trespassing on complainant's rights, registrations of domain names identical or confusingly similar to marks will not violate the Uniform Domain Name Resolution Policy (UDRP). But where domain names attract visitors for their trademark association or the resolving pages contain links to competitive products or services then they are infringing even if actual knowledge of complainant or the mark is denied.

In all UDRP disputes, there are factors that weigh heavily in one direction or the other. That a domain name registrant may claim letters are random or word combinations innocently chosen does not foreclose proof they are infringing. This raises the interesting question of weak marks and uncurated content. In the interplay between marks, domain names, and content, weak marks, and uncurated content favor complainants. By curation, I mean pruning content to avoid suggesting any association with the complainant or its competitors. This puts a premium on curated content.

The ultimate test of abusive registration in a proceeding under the UDRP is not identity or confusing similarity (which is merely a first step in establishing standing) but bad faith registration and use where respondents are shown to lack rights or legitimate interest in the domain names. This is to say that marks on the lower end of the spectrum may be distinctive when they specifically relate to goods or services, but generic when the connection to the marketplace is weak.

The letters "k" and "p" and "i," "m" and "i" (discussed below, already decided) and multiple other two or three letter domain names ("ktg" and "ivi" pending adjudication), that to mark owners are their distinctive indicators but to others are simply random letters, can be both, or more one than the other,depending on respondents' business model and use. Similarly with word combinations such as "herb" and "farm" or "print" and "factory" both of which are composed of common language parts, yet "herb" when prefixed with an "i" (the dominant part of the mark) stands higher on the classification scale as more inventive, which is not to say that under the right factual circumstances even that combination cannot be used by someone else, lawfully, but the Panel held it was not in iHerb, Inc. v. nathan hatter / blackonomics global trust group, FA1710001754609 (Forum November 16, 2017). I will return to this case in a moment.

The issue of letter strings and curation is played out in a particularly intriguing dispute between the mark IMI and the domain name. Respondent in Irving Materials, Inc. v. Black, Jeff / PartnerVision Ventures, FA1710001753342 (Forum November 7, 2017) registered the domain name in 1994 (23 years ago, although the mark predated the registration by decades!). Respondent did not appear to defend itself and lost. Why? It was not (according to the Panel) because of the default but because of the contents of the website (disclosure, the Panel, Neil Anthony Brown, QC authored the Foreword to my treatise, Domain Name Arbitration). I put this down to a curation problem; if a valuable domain name is identical or confusingly similar to a weak mark, it is necessary to attend to its contents. The Panel noted that

Complainant's screenshot confirms [that] ... the domain name contains various IMI related links and descriptions of the content located at the linked webpage.

This decision has been criticized for two reasons, namely the letters are arguably random and the length of time between registration and complaint. See Matt Serlin, UDRPs Filed–j Brand Owners Take Note (I think a better fit the title would be "Investors Take Note!) The second reason raises again the issue of laches as a complete defense, except that the equitable bar is only dusted off when there is no infringing use. Marks that predate domain names have potentially actionable claims, but only realized with proof of abusive registration, and in this particular case the proof was provided by the uncurated page to which <> resolved.

If website contents are properly curated, domain names must remain with respondents. As I read the ICI decision, the content supported Complainant's contentions. Either Respondent decided not to appear and offer a counter-narrative, or it was unaware of the proceeding. However, the Panel acted on the record before him, and that record supported Complainant.

The record in PCO AG v. Register4Less Privacy Advocate, 3501256 Canada, Inc., D2017-1778 (WIPO October 30, 2017) was better. The domain name was originally registered in 2000, although not acquired by this Respondent until 2008, which postdated Complainant's first use of its mark in commerce. The Panel explained that

A number of UDRP cases relating to three-letter domain names reflect the fact that such terms are generally in widespread use as acronyms or otherwise and it is entirely conceivable that a respondent registered such a domain name for bona fide purposes.

Obviously, each case will rest on its own factual circumstances. So, is there any evidence here which suggests that the Respondent registered the disputed domain name with the Complainant in mind? According to the Panel, there is not:

The Complainant claims to be widely known by the name "PCO" and to have a strong reputation worldwide but it has supplied no evidence in support of this assertion. In any event, the Complainant appears to operate in a somewhat niche and specialist sector and, even if the Complainant does possess a strong reputation in its field, there is nothing to support the Complainant's claim that the Respondent was "obviously" aware of the Complainant on acquisition of the disputed domain name.

Needless to say, the position would be different if the disputed domain name has been used for a website relating in some way to the Complainant's industry, but there is no evidence of any active website at the disputed domain name. The Panel continued:

[N]otwithstanding the Respondent's default, the Panel concludes that the Complainant has failed to establish bad faith. While the Panel takes account that, for whatever reason, the Respondent has not appeared in this proceeding to contest the Complainant's allegations, this is outweighed by the fact that the disputed domain name is [a] common three-letter acronym and there is no evidence whatever to link the Respondent's selection of the disputed domain name with the Complainant. The Complainant's key conclusions are unsupported and conclusory.

"Unsupported and conclusory." Those words are the kiss of death in a UDRP (as of course, it would also be in a litigation). The fact is, Complainant lost despite having a valid mark because it failed to support its contentions.

In Aurelon B.V. v. AbdulBasit Makrani, D2017-1679 (WIPO October 30, 2017) the Panel explained that although "use for PPC purposes of a domain name which is identical to a trademark, combined with an offer to sell the domain name for valuable consideration will [ordinarily] satisfy the requirements of the Policy ... [and those] precedents might have [mis]led the Complainant to believe that domaining is not admissible under any circumstances," that does not hold under all factual circumstances. What may be surprising to mark owners (although it should no longer be!) is that "speculative business models that are developed around the scarce resource that domain names are [are not unlawful]."

Two-letter strings are certainly a scarce resource. In John S. and James L. Knight Foundation, Inc. d/b/a Knight Foundation a/k/a KF v. Matthias Felger, FA1709001749586 (Forum November 6, 2017) involving a two-letter string <> the domain name was registered in 1997. The Panel rested its decision on several points, including lack of evidence that Respondent could have known about Complainant (the letters are not even random, but Respondent's initials):

Complainant in effect replies by pointing to the fame of the letters KF, and it adduces several pieces of evidence to support its contention. The Panel has taken considerable time to examine the specific searches relied on by Complainant and finds them singularly unpersuasive. It is not necessary to dissect them in detail, but one illustration to show the Panel's assessment of this evidence is the search result obtained from a Google search done by Complainant designed apparently to show how KF is widely understood to refer to the Knight Foundation, as the search produces results referring to Complainant and not to others. But it seems to the Panel to be of little use to search the expressions "knight foundation" "kf" ", which appears to have been done, as it will obviously produce the results obtained.

As the Panel explains

The test should be how the market sees KF itself, standing alone, as that is the trademark claimed by Complainant, and when the same search is done of those letters together, it produces results that make no mention of Complainant but many references to parties other than Complainant. The Panel is therefore not satisfied that any of the evidence adduced helps Complainant to prove its case for a common law trademark.

There are certainly cases in which generic terms that would ordinarily favor respondents are lost for puzzling reasons. I've pointed them out in earlier essays, and also noted that in ACPA actions UDRP awards have been vacated because of the weakness of mark and curating of the website. The point that must be emphasized is that UDRP jurisprudence favors established rights (whether of mark owner or domain name holder), but parties have to recognize the evidentiary demands that float or sink a case.

To return to the beginning, to the <> dispute. Respondent stated that it would have no problem with "allowing you to buy ... from us but we will not be transferring over our product for free." It expected to be compensated for the website, which is fair enough if the evidence matches the contentions, but in this case the,

domain name resolves to a website that purports to sell cannabis products from which Respondent likely profits. See Compl. Ex G. As the Panel has observed already, the use of Complainant's trademark, creating a confusingly similar domain name and using it to promote sales of cannabis products, whether lawful or not, wrongly suggests to the internet user that the sale of such products as promoted on Respondent's website is a business activity of Complainant.

Where the UDRP jurisprudence now stands in its development is that strings of lexical characters (letters and words) that by happenstance are identical or confusingly similar to complainants' marks, but whose values are built on the semantic senses for which they are used or can be used, cannot be forfeited to complainants in a UDRP proceeding. But incorporating marks (even of the "imi" class) to sell products or services or populating websites with hyperlinks to competitive products will surely be found infringing. The burden of complainants with weak marks is to establish their reputation and respondents' knowledge of them; and for respondents with valuable domain names, to curate them to avoid forfeiture.

Written by Gerald M. Levine, Intellectual Property, Arbitrator/Mediator at Levine Samuel LLP

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ICANN Issues Guidance to Domain Registrars and Registries in Light of Hurricane Maria

ICANN has issued a guidance notice to registrars and registries in relation to Hurricane Maria, which caused massive damage throughout the Caribbean.

* * *

Dear gTLD Registries and Registrars,

As you know, Hurricane Maria caused catastrophic damage in the Caribbean and surrounding areas. We have also heard from community members that ongoing issues with electric power grids and the telecommunications infrastructure are affecting the ability of some registrants to renew their domain names.

In order to assist registrars and registries in providing continuity of service to affected customers, ICANN hereby approves Hurricane Maria and other similar natural disasters as an extenuating circumstance under RAA section

" Extenuating circumstances are defined as: UDRP action, valid court order, failure of a Registrar's renewal process (which does not include failure of a registrant to respond), the domain name is used by a nameserver that provides DNS service to third-parties (additional time may be required to migrate the records managed by the nameserver), the registrant is subject to bankruptcy proceedings, payment dispute (where a registrant claims to have paid for a renewal, or a discrepancy in the amount paid), billing dispute (where a registrant disputes the amount on a bill), domain name subject to litigation in a court of competent jurisdiction, or other circumstance as approved specifically by ICANN."

Based on this approval, registrars will be permitted to temporarily forebear from canceling domain registrations that were unable to be renewed as a result of the natural disaster.

This and other devastating events highlight the potential need for a policy initiative to protect registrants when they are unable to renew their domains as a result of natural disasters or other extraordinary circumstances.

In the interim, we encourage you to take these circumstances into consideration when reviewing renewal delinquencies from affected areas.

Thank you for your attention. Please let me know if you have any questions, or if there is anything else ICANN might be able to do to assist you in providing continuity of service to customers affected by Hurricane Maria or other natural disasters.

Akram Atallah
President, Global Domains Division

* * *

This isn't the first time that this has happened, with a previous incident in Asia triggering action from both registrars and registries to give domain name registrants impacted by the natural disaster breathing space.

Several people within the broader ICANN community had raised the issue related to Caribbean registrants in the last couple of weeks. ICANN giving registrars and registries a "green light" means that there shouldn't be any issues with contractual compliance should a registrar or registry give people extra leeway.

Written by Michele Neylon, MD of Blacknight Solutions

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Berners-Lee Talks Net Neutrality in Washington, "ISPs Should be Treated More Like Utilities"

Tim Berners-Lee is in Washington urging lawmakers to reconsider the rollback of net neutrality laws — while remaining optimistic, he sees a "nasty wind" blowing amid concerns. Olivia Solon reporting in The Guardian writes: "These powerful gatekeepers ... control access to the internet and pose a threat to innovation if they are allowed to pick winners and losers by throttling or blocking services. It makes sense, therefore, that ISPs should be treated more like utilities. ... 'Gas is a utility, so is clean water, and connectivity should be too,' said Berners-Lee. 'It's part of life and shouldn't have an attitude about what you use it for — just like water.'"

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