Henry Ford is reported to have observed that “If I had asked people what they wanted, they would have said faster horses”. Short enough to be popular on social media, this homage to leadership is as likely to be used to damn ‘luddite’ dissenters today as at any time in history.

[easy-tweet tweet=”The domain name system offers new ways of conducting business and of expressing an opinion”]

Yet whatever logic the saying has when applied to genuinely revolutionary creations, the idea that leaders have monopolies on the best ideas, and therefore that they can and in some cases should bypass popular opinion, is not without controversy.  This is particularly true where decisions are liable to erode those rights which are so fundamental to our daily lives that we simply take them for granted.  We often see this tension in the development of digital media services, where new opportunities are paid for by revising our social and cultural foundations, or at least our assumptions about the extent of those foundations.

Ongoing discussions within ICANN, the organisation that controls the domain name system, are putting a modern face on this value exchange.  With historically low barriers to entry, the domain name system, and in particular the new top-level domains (TLDs) such as <.cloud>, offers new ways of conducting business and of expressing an opinion.  But as the domain name system has grown in size and in importance, it has enabled a volume and diversity of privacy and property infringements that would never be experienced offline.

Freedom of expression is a fundamental right, of course; but so too are the rights to respect for private life and to property, including intellectual property.  Can these competing interests be given equal protection, or must one cede to the others?  How, and by whom, should the balance be determined?  Through the creation of bespoke rights protection mechanisms (RPMs), several TLD operators are taking the initiative to determine where the balance lies within their own domain spaces, but the absence of a global solution to expressive-but-infringing content across all top-level domains means that in practice many stakeholders remain without any remedy or protection against abusive behaviour.  So, what to do?

Recent history shows how a global solution could be achieved.  In 1999 the global Internet community created a low cost, accessible and, most importantly, supranational means of tackling cybersquatting and typo-squatting in domain names that also preserved Internet users’ rights to freedom of expression.  As a result of contributions from stakeholders representing all aspects of the domain name system, the community created the Uniform Domain Name Dispute Resolution Policy (“UDRP”), an administrative procedure to which those selling domain names must now adhere in order to comply with their contractual obligations to ICANN.

The UDRP has been a huge success.  It provides certainty to rightsholders and registrants alike, and it means that disputes can be resolved without costly litigation and potentially life-changing damages or cost awards being made against a losing party.  A small number of interest groups want ICANN to scale back the UDRP as part of its ongoing RPM review, but those groups have not offered any compelling alternative.  In fact, not only has the global Internet community benefitted from the stability and predictability of the UDRP, but it is appropriate in the context of ICANN’s RPM review to consider whether the model of the UDRP might offer a solution to the issues raised above, and could be extended to address more than just the use of trade marks in domain names.  There is no doubt that a collective process such as that which created the UDRP would allow any proposed solutions to draw on the experience and perspectives of the disparate interest groups within the Internet community. That it would result in a globally-binding solution that would create a level playing field and could not be altered by mere bilateral agreement also favours this approach.

As shown by the steps taken by individual registry operators to develop their own RPMs, a new era of Internet governance is coming:  the question that remains is what will it look like?  Should conduct and content be regulated by bespoke solutions developed by commercial service providers, by minimum standards set out by governments on behalf of their citizenry, by detailed rules agreed upon by the global Internet community, or by some other means?

[easy-tweet tweet=”The creation of bespoke RPMs suggests a new era of Internet governance is coming” hashtags=”ICANN”]

There are many ways for the community to get involved in this debate, from attending ICANN meetings, to joining a mailing list via http://icann.org, to liaising with technology and disputes lawyers familiar with ICANN. But whatever the method you use to have your say, the time to get involved is now.

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Gareth Dickson, Associate, Cooley Gareth is a litigator in Cooley's London office. He is a UK qualified solicitor and New York admitted attorney whose practice focuses on the resolution of technology, intellectual property and social media disputes. Gareth was recently appointed by WIPO to the position of UDRP Panelist and is regularly called upon by clients to urgently resolve cross-border disputes involving the technology, financial services, luxury goods and creative industries. Gareth works to ensure the proper exploitation of technology both locally and internationally and especially in the online environment. His work involves formulating digital strategies, tackling Internet fraud and the misappropriation of protected works, and acting quickly to withdraw counterfeit goods from circulation anywhere in the world. He also evaluates computer-implemented inventions for patent and copyright protection, and has significant experience in the recovery of domain names.