WHY JURIES SHOULD PLAY A ROLE IN THE INSTITUTIONS THAT GOVERN CYBERSPACE - PART I

By DAVID G. POST

Editors’ Note: This is Part One of a two-part article in which Professor Post examines what role juries should play in cyberspace. In this Part, Professor Post discusses why juries are a key aspect of popular sovereignty under our Constitution, and explains how the governing institutions of cyberspace have effectively created an international system of trademark law. In Part Two, to be posted on Monday, Professor Post argues that the governing institutions of cyberspace should resolve domain name dispute using juries rather than arbitrators.

Like it or not, in a small, and often dark, corner of the online world, a "law of cyberspace" is being made by institutions you’ve probably not even heard of. These institutions will, I promise you, grow — possibly at the kind of warp speed that seems to characterize most of what takes place on the global network.

We can build these institutions well, or we can build them poorly. If we build them well, we will have done much to assure the continued growth of this remarkable medium; if we build them poorly, we will have squandered a wonderful opportunity and set the stage for a much less pleasant future. Two central questions about how we will build them are whether, and to what extent, juries will play a role.

Juries As An Aspect Of Popular Sovereignty

The constitutional system of the United States is based on a very simple idea: that the people are sovereign, that all law-making power derives ultimately from them, and that law cannot legitimately be imposed upon them unless they have a voice — an equal voice — in the law’s creation.

And members of the citizenry sit on juries. Though we often overlook it, the right to a trial by a jury of your peers was considered, and remains, an integral part of this intricate law-making system, another mechanism by which popular sovereignty is expressed and the people get to "make law." The people exercise their sovereignty when a jury renders its verdict, just as surely as they do when they vote. And while jury service is often understandably perceived as a burden, it is also a right — a right of the jury member to have a voice in government and a right of the parties to the case to have a jury decide it.

How The Governing Institutions Of Cyberspace Effectively Create Law

 

How well do cyberspace's law-making institution measure up? How much of a voice do the people of cyberspace have over the rules that govern their conduct? Is the principle that the people are sovereign being honored there? Well, let me describe a particular set of such institutions, and you can judge for yourself.

In 1998, the United States government turned over management of the Internet’s domain name system to a private group, the Internet Corporation for Assigned Names and Numbers (ICANN). In November 1999, ICANN adopted something called the Uniform Dispute Resolution Policy (UDRP).

The UDRP was designed to deal with a set of conflicts that had arisen on the Net -- specifically, the well-publicized clashes between trademark holders and so-called "cybersquatters" over possession of particular domain names in the popular *.COM, *.ORG, or *.NET domains. Think, for instance, of the clash arising out of Zippo, Inc.’s claim that its trademark in the word "zippo" entitles it to the domain name "zippo.com." Or of Porsche, Inc.’s claim that its trademark in the word "porsche" entitles it to the domain name "porsche.com." Or of Planned Parenthood of America’s claim that its trademark in the phrase "Planned Parenthood" entitles it to the domain name "plannedparenthood.org." Dozens of disputes like these have made their way into courtrooms around the world.

The UDRP provides a rule to resolve such conflicts, stating that the trademark holder is entitled to the domain name if:

    1. the domain name is "identical or confusingly similar to" the trademark in question;
    2. the domain name holder has "no rights or legitimate interests in respect of the domain name," and
    3. the domain name holder has registered, or is using, the domain name "in bad faith."

How is this rule applied to particular cases? The UDRP relies on a system of private arbitration. Under this system trademark holders can submit claims under the UDRP to arbitration panels — chosen from a list of ICANN-approved dispute resolution service providers — and receive a decision about whether or not those three conditions have been satisfied in any particular case.

In the nine months since this process was put in place, over 2000 cases have been submitted to UDRP panels and over 1500 decisions handed down. With the filing rate steadily increasing, the dispute pipeline may well have three or four thousand cases in it by the end of this calendar year. Moreover, while the decisions in these cases are not technically final, they are almost always effectively final in practice. The losing party in a UDRP dispute does not relinquish the right to take the matter to court. But possession, as the old cliche has it, is sometimes nine-tenths of the law. As a practical matter, only a minuscule handful of the over 1500 decisions that have handed down under the UDRP have been appealed to local courts.

How do I know that the domain name holder will comply? Because ICANN will not permit anyone to offer *.COM, *.ORG, or *.NET domain names to the public — to become, in the jargon, a "registrar" of domain names — unless they agree to abide by the decisions of UDRP panels. As a result, the institution from which you obtained your domain name has already agreed to revoke your domain name registration, and to transfer the registration to someone else, if a UDRP arbitrator tells it to.

The UDRP, furthermore, is applicable globally. No matter where you happen to reside, no matter where the entity from whom you obtained your domain name is located, and no matter where the trademark in question may be in effect or where the trademark holder is located, the UDRP — as applied by these arbitrators — will determine the merits of the claim. In short, for all intents and purposes, this process is creating a new body of international trademark law.

David Post is Associate Professor of Law at Temple University Law School, where he teaches intellectual property law and the law of cyberspace, and a Senior Fellow at the Tech Center at George Mason University Law School.

Read Part II of Professor Posts article.

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