November 1, 1999

j.ello | by the byte

    I have a growing concern about law and technology.  There's nothing more detrimental to our happy little networked lives than leaving the Information Superhighway to be legislated by those who can barely pave -real- highways.  It is incumbent upon us to educate those we have hired - preferably using mono-syllabic words and short, rhyming sentences so as not to confuse them. :)
     Both the House and Senate have passed versions of a "cybersquatting" bill.  The idea of the bill is sound, it is to prevent people from grabbing desirable domain names and selling them for profit.  However, the details of both bills go so far as to make it a crime to use a word, or in my case, my own God-given name.  The House bill would prohibit the registration, sale or use of a domain name that is identical to or "confusingly similar" to a trademark in use at the time of registration.  Violations are punishable by a $100,000 fine, and even if the domain is registered before the law takes effect,  the trademark holder can demand the cancellation of the name.
     Why this is bad:

1. Nowhere in the charter of the Internet does it say that the Internet's DNS system was built for the exclusive, unfettered, or otherwise preferential use of business, nor does it specify that a .com domain MUST be a company, nor does it say that a .net domain CAN'T be a company.  In fact the only restrictions on naming are the .gov, .mil, and .edu domains which obviously MUST be what they claim to be.  
2. J. Ello is my name, my REAL name.  www.jello.net is the closest thing I could find to MY name.  It bears a strange resemblance to a trademarked product, yes... but the site makes no mention of it, nor are there any infringements of copyright or trademark herein... so why should I be able to be forced away from a domain name which is "confusingly similar" to a trademark, when it is clear that it does not infringe the already beefy copyright and trademark laws?  The domain name is an address, like 500 N. Maple, NOT a product name.
3. Every company had the same chance of getting domain names as everyone else in the world.  A failure to take advantage of it when they had the opportunity... like all other forms of poor forethought, SHOULD preclude their being able to use it without considerable reparations to those who saw the value of the address.  I'm not saying that someone should be able to scalp a site for  millions, but I do believe that like any other commodity... if you don't buy when you're supposed to buy, then you pay for it later. That is, after all, the cornerstone of capitalism, is it not?
4. Let's say I trademark a product tomorrow.  The product becomes insanely popular and people start snatching up the domain names before I think to buy them... why should I be guaranteed the names?  It was my stupid fault for not getting it when I should have.
5. Consider this... if my name were Ford, and I owned a company named Ford Bagels, and I happened to get the Ford.com domain before Ford Motor Company... why should I be forced to give it up to the Ford trademark?  The Internet is protected by free-speech laws, so why should www.ihatemicrosoft.com be forced to resign it's address?  Should a site focusing on educating, like any other member of the press, be forced to give up its right to use certain language in its address?

     Here's the legislators' mistake.  A domain name IS NOT a product name - and never will be.  It is an address - a locator.  URL means Universal Resource Locator - it is a method of replacing a hard to remember set of numbers with an easy to remember set of letters, so that we can remember how to get back to the same place twice.  It does not mean Universal Trademark Owning Business Finder.  There are product trademark names which mimic their domain names, like Outpost.com, or Amazon.com.  But if they don't pay their renewal fee, why should they retain the right to the domain name?
     What the legislature is missing, is that the DNS system is not absolute, and can easily be expanded past the ".com" boundary... so instead of trying to legislate away free speech, why not build a home for Trademarks?  It would be easy to add a trademark locator into the Internet, a separate naming system allowing Trademarks a guaranteed home with exactly the name the want!  Or Hell... just add a ".tm" or ".tmk" domain.  Only registered trademarks would be able to apply.  Copyright and Trademark laws already prevent people from committing infringement on the Internet.  Why curtail free speech and free enterprise when we can simply expand the game to satisfy everyone?  

     Talk to your representatives and senators, smack em with a trout or something, but don't let your freedom be curtailed by ignorance.  Need to find your servants?  Check LookSmart Here.

     -j.ello

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