S.2661: Snowe’s Bill chance on Hill? The APCPA bill that should make ALL domain owners loose sleep at night…

by jothan | Feb 28, 2008 | ICANN, Policy

Michael Berkins is blogging about a particularly nasty bit of legislature that is coming down the tubes.

I am really concerned about a piece of legislature that has been getting pres. On February 25th, 2008 US Senator Olympia Snowe (R-ME) introduced S. 2661, the “Anti-Phishing Consumer Protection Act of 2008 (APCPA)”. The bill is co-sponsored by Ted Stevens (R-AK, of the “Series of Tubes” fame fame as pointed out by Marcia) and Bill Nelson (D-FL).

If you are a domain owner, most notably a domain name developer or web site owner, or operator of a geodomain, this is something that you should be following very closely and trying to work toward having it revised. The Internet Commerce Association is following this as well.

This bill in particular really concerns me because of the things that were coat-tailled onto the bill that basically provide any government office, non-profit, business or other entity an opportunity to identify a registration that is ‘similar’ as being unlawful and subject to enforcement, injunctions, and recovery of damages.

Look, I am all for professional responsibility in computing and I strongly believe in eliminating phishing. In fact, I am anti-phishing and applaud and contribute with efforts to combat illegal activities like phishing. I also support efforts to help reduce trademark infringement, and I encourage people to always use accurate information when submitting domain name registrations.

There is clearly pain in the trademark and intellectual property world with respect to how domain names work. The pain is in removing tangles from the way that the domain name system and the trademark systems are obtuse to each other, coupled with the glacial pace of many corporations and businesses adoption of competent and market savvy strategies for their domain name management. There has been over a decade of evolution to these worlds towards untangling the mess and improving remedy and it is evolving. Meanwhile it is not becoming perfect any time soon because there are fundamental differences in the ways that the worlds of domain names and intellectual property work.

This bill which is intended to eliminate phishing has been unfortunately co-opted in a clear attempt by the trademark interests to essentially eliminate the hard earned balance and improvements that have been accomplished in the area of domain names and trademarks and domain names and makes the system entirely trademark centric, while shifting the bulk of the burden of enforcement onto our overburdened civil and judicial systems and shifts the costs onto the American tax payer.

It creates the potential system that completely is biased against all domain owners in a manner that obnoxiously favors trademark interests. I applaud that these senators from three of the tips of the United States have hoped to put an end to phishing, and I really hate to see that their efforts will have so clearly been undermined by the interests of businesses to inject clearly belligerent coattails.

I have had it mentioned to me that S.2661 needs to be focused on addressing Phishing, it needs massive edits to become reasonable and rational. In that same conversation, it was presented to me that as it reads now today, the bill could potentially give the rights to a non-profit such as an “East Bay Autistic Youth” (fictionally presented for conversational example) the opportunity to contest ebay.org or ebay.com for that matter.

Put yourself in the shoes of a person who owns a domain trackshoes.com. Now today, that is an extremely generic and brandable domain name. This legistlature could put that domain name in jeopardy and create disruptive burden on the domain name owner, not to mention burden a legal and civil system that our tax dollars pay for.

This is the trademark interests clearly pushing their agenda.

Over on Berkins’ blog, my long time friend Joe Alagna suggested that it would be wise for people who are opposed to S. 2661 should be able to contact these Senators, so here is their contact information:

Senator Snowe | Senator Nelson | Senator Stevens