Control over the internet is slipping away from the US government and American corporations in favour of a more global approach, and the corporations don’t like how they’re being treated so far.
In a US House of Representatives Judiciary Committee hearing today, representatives from the International Trademark Association, Amazon, and other US-based internet commerce organizations testified about how they’ve been treated unfairly by the International Corporation of Assigned Names and Numbers (ICANN), the non-profit corporation charged with managing new domain names.
ICANN, founded in the US in the late 1990s, will officially cut its ties with the American government this year in a move expected to further internationalize internet governance with input from foreign companies and governments. Steve DelBianco, executive director of online commerce advocacy group NetChoice, made the urgency of the situation for American corporations clear when he told the committee that this was its “last chance” to leverage the power that it was “about to relinquish.”
Several of the witnesses at the hearing singled out the case of the company behind the controversial .sucks domain name, Vox Populi—which was accused by ICANN’s Intellectual Property Constituency of targeting brands with “predatory” pricing—as an example of how ICANN is not supporting US interests.
“The launch of .sucks is an example of ICANN’s operational deficiencies,” said Mei-lan Stark, senior vice president of intellectual property for Fox Entertainment, on behalf of the International Trademark Association. “Vox Populi co-opts the rights mechanisms developed by the multistakeholder community, and uses it to identify who pays up to 250 times more for a domain name.”
In April, ICANN deferred investigation into the issue to the US Federal Trade Commission and its Canadian equivalent.
"The internet is inherently international, and trademarks are legally national"
According to Stark, ICANN’s failure to properly cater to the needs of corporations with trademarks in the US with regards to what domain names can be purchased, for how much, and by whom, does not bode well for how ICANN will manage the internet’s naming system on the world stage.
“It’s completely fine if the US wants to impose a significant set of rules that mirror American trademark law on the .us domain space,” David Fraser, an internet policy lawyer at the McInnes Cooper law firm, told me in an interview. “They can absolutely do that in the same way that Canada could do it with .ca, or Peru could do with .pe. But the internet is inherently international, and trademarks are legally national.”
But that legal point isn’t stopping American corporations from trying to enforce their trademark protections using the global internet naming system. Paul Misener, Amazon’s vice president for global public policy, used his time in front of the committee to testify about ICANN’s rejection of Amazon’s application for the .amazon domain name.
Watch more from Motherboard: Buying Drugs and Guns on the Deep Web
According to Misener, the influence of the governments of Brazil and Peru—where the actual Amazon rainforest is—in the decision indicates how foreign governments are hijacking the internet naming process. “It was a loss for us,” Misener said. “The US government ended up abstaining [in the decision], when they could have objected, to this treatment of an American company.”
“We have options,” he added, “I suppose, legally.”
According to Fraser, Amazon’s protestations and attempts to keep the .amazon domain for themselves are examples of how companies are attempting to use global internet governance as a way to protect their trademarks.
“You run the risk of using US companies, and really, companies from anywhere, flexing their muscles in an inappropriate way to exercise rights over an international thing that they don’t have any any inherent or legal right to,” Fraser said. “They’re making policy arguments that I think are significantly flawed, because their foundations are in national law, and have no counterpart in international law.”
ICANN’s contractual agreement with the US government will officially end on September 30th, 2015, when it will finally—and officially—be free to operate as a truly international organization. And, if today’s hearing is any indication, US corporations are not looking forward to it.