The Name Game
Legal wrangling over Internet domain names is an absurdity that should be remedied through a new naming structure.by Joel Snyder
There is everything in a name. A rose by any other name would smell as sweet, but would not cost half as much during the winter months.
What's in a domain name? apparently everything, from the shenanigans we've been seeing lately. It's that darn "com" thing. Everybody wants their piece of the action. And everybody wants to make sure that their "whatever.com" is reserved for them and for them only, now and forever. Unfortunately, there's only one "whatever.com" and only one company can have it.
If you're not following me, think a bit about Holiday Inn (as I am because that's where I am writing this). It's a perfectly nice company that might want to use the name holiday.com as its Internet address. Of course, there's a problem. Lots of companies have a legitimate name that includes the word "holiday." How about Holiday Truck? Holiday R.V. Superstores? Holiday Travel? And what about a company that doesn't have Holiday in its name but wants to be associated with the idea of holidays? Or how about Jan Holiday, who runs a consulting company in Aspen, Colo.?
Outside of the Internet, companies are free to acquire trademarks that protect their use of a name and logo within limited areas of application. That's why we can have Apple Computer and Apple Records and there's no problem. However, there's only room for one apple.com on the Internet.
Who gets it? The first person, company, or organization who asks for it. This has frightened companies that have no idea what the Internet is, but are sure they have to be on it or they'll be left out. So now we have folks abusing the poor domain name system.
Originally, you got a domain name because you needed it as a way to map your numerical TCP/IP addresses to some meaningful word nomenclature. As Paul Vixie, the reigning guru of the Internet domain name service says, "DNS is about naming. It is good for objects to have persistent names, more persistent than the [TCP/IP] addresses and port numbers and routes used to reach them."
This purpose has been lost in the massive commercialization of the Internet. Now, organizations get domain names because they want people to be able to find them or purely for vanity. Because there's no good directory of the Internet (please, Yahoo fans, save your e-mail; there's still no good directory), often the only way to find a company on the Net is to guess at its domain name by sticking "www." in front and ".com" at the end.
As yet, there is no fee to apply for a domain name (although you may have to pay a fee to have someone maintain it for you), and there is no disincentive for people to ask for as many as they want. Some people even get them for profiteering, such as the fellow who registered statefarm.com and kmart.com, hoping for a quick buck.
What does this mean for my friends at Holiday Inn? Well, they asked for not just one domain, which is truly all they need, but holidayinn.com, omahahotel.com, hiw.com, holiday-inn.com, and even crownplaza.com. I hope you're taking notes on the difference between "holidayinn" and "holiday-inn," because someone out there seems to care.
Meanwhile, Coral Technologies, in Miami, Fla., is the happy business using holiday.com--without any rancor from Holiday Inn, notes Sara Riley, one of the partners at Coral.
The mindless abuse of the domain name grab is causing problems. For one thing, the InterNIC, which is the clearinghouse for names in the three-letter domains most interesting to commercial organizations, .com, .net, and .org, is badly overloaded with frivolous requests--so much so that legitimate requests for changes and new domain names are being delayed as long as a month. The root domain name servers, which must know about every single top-level com domain name, have to load up more than 80,000 records for com alone. Fortunately, the Internet itself can keep up with this silliness. Paul Vixie notes, "Technology isn't the limit. The root servers are well equipped and well placed."
A bigger problem comes from organizations seeing a domain name as a valuable part of their business and moving their legal staffs into high gear. The first big public fight involved one company misappropriating the name of another. Princeton Review and Kaplan Educational Centers, stiff competitors in the college review business, got into a major tiff because Princeton reserved its own name and kaplan.com.
The Princeton/Kaplan shtick was just a harbinger of things to come. Obviously, there was a problem with that one. But now companies are beginning to make moves to grab names as quickly as they can, and this is turning into a major nightmare.
The trend has the InterNIC very frightened. Several months ago it started requiring everyone who requests a domain name to state that they have a right to use the name. Now it's distributing a long, legal document it has proposed as a new policy on domain names. As part of the InterNIC's new policy, folks with trademarks get to kick around folks without trademarks. Never mind that trademarks aren't supposed to be granted for simple company names and that virtually no one has a trademark with "com" at the end of it. The InterNIC has seen the lawyers once too many times and it doesn't want to get in the middle of the fray.
(For further discussion of the new domain name scheme, see "Avoiding the Traps in the New Rules for Registering a Domain Name," an article by Carl Oppedahl that appeared in the New York Law Journal.)
The InterNIC also has announced that it has no intention of becoming a miniature Patent and Trademark Office and that the burden of crossing Ts, dotting Is, and checking for trademarks will fall on the applicants for domain names. So how does Sara Riley's company get to use holiday.com? It was there first, of course. Riley explains, "We have over 65 names registered, and we were careful not to register anything that has direct trademark implications. Holiday Inn cannot prevent the usage of the word 'holiday'--it is a general word with meaning separate from that used in Holiday Inn's name, and we are not holding ourselves out to represent or be Holiday Inn."
Trademarks are only the start of the battle. There are some companies that have announced that they think of the domain name they're using as a valuable business asset, and any government entity, such as the InterNIC, attempting to wrest it from their grasp (or, as the legal eagles call it, "takings") will face a legal challenge. It's getting nasty, and it's going to get nastier.
All of this rush after domain names isn't doing the Internet any good. But it's the natural consequence of having a limited resource with inappropriate controls against abuse. A related, although not identical, problem has come up with IP addresses, for many of the same reasons.
For an especially well-written analysis of the IP address shortage, read Geoff Huston's RFC 1744, Observations on the Management of the Internet Address Space, available via anonymous FTP. In it, Huston notes that the majority of allocated address space is inefficiently utilized and suggests that "an entity already in possession of a sufficiently large but inefficiently utilized allocated address block could resell the block to a third party, and then seek allocation of a smaller address block from the remaining unallocated address space."
Given that we got ourselves into this mess, how can we get out of it? The old Internet philosophy of cooperative growth isn't going to work. Like any public-goods problem, the Internet domain name mess isn't going to fix itself just by asking everyone to join a massive hug-a-thon and turn in those names they don't really need.
One way to solve it would be to eliminate the com domain entirely and force everyone to fall under the geographic domains under us. For example, my company might stop being known as opus1.com and become opus1.tuscon.az.us. No one likes that idea, which must mean that it has some merit. We could also open up new top-level domains. You like com? How about inc? corp? ltd?
Another possible approach might put the burden on the InterNIC to strictly limit domain names to people who really need them. Rather than passing them out as vanity plates, domain names could be restricted in some way to slow the flow. The InterNIC hates the idea because it wants to be a registration authority, not a judge.
My favorite approach is the one the InterNIC is taking: economic incentives. You want a domain name in com or net? No problem. But it's going to cost you $50 to have it in the DNS--every year, once a year, for as long as you have the domain name. A name that isn't in the DNS isn't useful, so this amounts to a usage fee for the names. Of course, if you just want the name but don't want to pay to have it in the DNS, then there can be lots of holiday.coms.
You don't want to pay to be at the root? Share with your service provider instead. I have no way of knowing the outcome, but I bet we would see literally tens of thousands of domain names disappear from the Internet. And we'd raise enough money to make a nice contribution to the maintenance of the Internet backbone. Or perhaps we could use the money to pay for what the Internet really needs: a true directory service.
Of course, the well-funded oinkers out there would still hog domain names and there would still be a major problem. The only long-term solution is to change the significance of Internet domain names. If the Internet had a true directory service, as well-known, centrally operated, reliable, and cost-free as the InterNIC, we'd at least have a fair alternative to the use of domain names as vanity plates. I'd like to give Paul Vixie the last word: "Naming isn't directory service. If we don't separate them, we'll reach a limit much harder to fix than any technological limit."