As the Internet has burgeoned into a commercial infrastructure, fierce disputes have arisen over domain names. Should "roadrunner.com" belong to an Internet Service Provider (ISP) named Roadrunner, Inc., or to Warner Brothers, the owner of the cartoon character who always bests Wile E. Coyote? Brokering of domain names has sprung up. An enterprising man named Toeppen has registered many domain names corresponding to big companies, apparently with the hope of "selling" them to the companies when those companies "wise up" about the necessity of a presence on the Internet. A Vancouver company, MailBank, has spent U.S. $1,000,000 to register 10,000 domain names relating to popular family names, and is marketing them to those who desire personal domains corresponding to their surnames.

These domain name disputes have caused a flurry of legal skirmishes and drawn forth quite a few commentaries and some policy initiatives. In this essay we will describe some of the skirmishes and initiatives, but our goal here is to focus on a deeper issue that the domain names problem surfaces -- the issue of Internet self-organization and self-governance. Perhaps surprisingly to those who do not habitually hang out in Cyberspace, right now it is simply not clear who has the ultimate authority to grant out "ownership" -- and revoke "ownership" -- of a domain name. A domain name is an address; currently, they are the primary means of identification in Cyberspace. Questions about how to achieve a stable resolution of the domain names problem flow rather quickly into general questions about "bottom-up" versus "top-down" methods of achieving law, and about sovereignty and its connection to territoriality.

This draft paper was co-authored with R. Polk Wagner in December 1996 and is currently undergoing revision. Feel free to read it and send comments. (Please do not cite this article without checking with me first.)

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Examining the Economic and Intellectual Property Issues of Non-Proprietary Technology

Our paper will examine how non-proprietary technologies alter traditional models of network economies and intellectual property regimes. Non-proprietary or open systems constitute a rapidly growing segment of the technology marketplace. The hardware components include open architecture and interface standards, and the software components include operating systems as well as programming languages. Non-proprietary technology and the expansion of the Web has also produced new thinking about the optimal level and form of intellectual property protection embodied in such concepts as Copyleft and usage-based revenue collection programs. After analyzing the proprietary computing models in terms of network operations and path dependence, we assert that non-proprietary systems technology has the potential to overcome lock in and encourage market competition without sacrificing the positive direct and indirect network externalities which stem from expansive networks. Non-proprietary technologies offer a new model of sponsorship and alter traditional models of incentive structures and innovation. However, transaction costs and coordination problems create problems for the adoption of new technology, and a crucial question for firms deciding to switch platforms is whether they will gain a first-mover advantage or suffer the consequences of switching to a relatively unsupported and untested network. Observations about the current adoption of non-proprietary technologies will play a central role in evaluating whether the transition away from proprietary computing models will continue.

Non-proprietary technologies present problems for the protection of intellectual property rights. Open standards and seamless interfaces as well as the portability and cross-platform potential of non-proprietary programming languages make protection of these rights using traditional copyright forms difficult. Our paper will integrate an examination of non-traditional intellectual property forms that have developed on the Web such as Copyleft and will address the critical question of how intellectual property protection should evolve in order to ensure the continued economic viability of non-proprietary technologies. A final question this paper will consider is whether the move to non-proprietary systems in hardware, software, and evolving intellectual property protection contexts necessarily entails a full commodification of the Internet. Are there limits to the market rhetoric which is so essential for analyzing the transformation of computing paradigms? Are there aspects of the Internet which can (or should) remain free from full commercialization, and if so, what are the mechanisms which will protect these elements in a non-proprietary environment?

Our current working bibliography is available here. Feel free to read it and send comments.

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