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Featured Fellow: Diane Cabell

This is the third of a series of posts on Berkman's fellows (Derek Bambauer, Mike Best).  The Berkman Center is home to approximately thirty fellows, all of whom focus their time and energy on issues concerning the Internet, including Internet governance, privacy concerns, intellectual property rights, antitrust issues, electronic commerce, the role of new media and journalism proper, and digital media.

Diane Cabell is a fellow at the Berkman Center, with research interests relating to internet trademark and liability issues.  Her widespread activities include serving as a panelist for the World Intellectual Property Organization (WIPO), which handles domain name disputes, and as corporate counsel for Creative Commons (CC), a nonprofit organization dedicated to protecting the public domain and expanding the amount of freely-available content online.  Diane is also a co-founder of Chilling Effects, which collects and annotates cease and desist notices that attempt to suppress online speech.  A technologist at heart, Diane has been involved with the Berkman Center since its founding.

You can check out Diane's bio here, which includes links to her publications.  Below is a Q&A with Diane about her work conducted by Berkman intern Katie Chang.

Question: Can you tell me a little bit about WIPO and your work as a panelist there?
Diane:
Several arbitration bodies were appointed by ICANN to manage the domain name dispute problem. [WIPO] is as close as it gets to the Internet police. The dispute procedure is only available for trademark conflicts regarding domain names.  There is a limited set of conditions that must exist before an action can be brought.  There are no damage remedies, only specific enforcement, i.e. the domain name can be yanked away from the registered holder if the arbitration panel finds that s/he has been acting in "bad faith.”  Only trademark owners can bring these actions which leaves a lot of other people with name rights out of the loop.  A corporate name is not always a trademark. For example, the American Hondo Dealer Association is a trade name, but Honda is a trademark.

Q: What problems do you see with the UDRP?
Diane:
The problem is that someone can have a relatively obscure trademark that is only valid in, say, North Dakota.  But under the ICANN rules for these actions, called UDRPs (for Uniform Domain Name Dispute Resolution Policy), that person can kick off some poor fellow in England who wants to use the same name for his local business.

The U.S. mark owner has no rights under trademark law in the U.K.  He could not prevent the Brit from doing this.  But ICANN will allow it.  It basically puts trademarks on steroids as far as the Internet is concerned. It gives them hugely extra-territorial rights that simply don't exist in the real world. 

Q: Who are your fellow panelists? How well do you think the arbitration panel works?
Diane:
WIPO has selected UDRP panelists who are highly skilled in trademark and intellectual property law.  That's one way to get more reasonable decisions. Non-lawyers often blame the trademark bar for pushing to get extra privileges for their clients, but most trademark lawyers represent both sides of the case in infringement actions, so they have a healthy respect for the legitimate defenses that non-IP attorneys don't even begin to understand. WIPO also has training programs for its panelists.  Not many of the other arbitrators do that.  One of them has law clerks prepare memoranda on the possible legal issues, but the body of UDRP opinions is wildly inconsistent since so many of the panelists are not specifically trained. It's amazing how many different interpretations can be made from the same presentation of facts.

Q: I notice that you’ve had longstanding involvement with ICANN.  How have you seen ICANN change over time? 
Diane:
There haven't been many changes since ICANN was established.  It has turned into a giant trade association for Internet-based businesses such as the domain registrars and registries.  My heart kind of died at the last ICANN meeting I attended.  I realized that the one shot we had at a true user-based governance system was long gone.  Now the industry is becoming increasingly concentrated (like the Telcos), so that doesn't bode well for the user either. Folks like [John] Palfrey and [Jonathan] Zittrain keep looking for ways that the user can still assert some control through technology, though, so all is not lost yet.

Q: What changes would you like to see?
Diane:
In light of the way things have developed, I'm yearning for good old American constitutional principles and free speech protections to be imposed.  I think we are heading toward Internet zoning, which makes sense.  Nations are already gating their user communities, so I expect we'll see more districting on thematic bases: an adult zone, a kid zone, a French-speaking zone, etc.

Q: I want to switch gears a bit and discuss the work that you do with Creative Commons. Can you tell us a bit about the mission of Creative Commons?
Diane:
CC was established by some of the nation's leading cyberlaw academics and has offices in Boston, San Francisco, London and Berlin.  CC is a response to the expansion of intellectual property law in the digital age. Napster led to massive "piracy" (or so the RIAA argues), and Hollywood is next; as a result those industries got legislation such as the Digital Millennium Copyright Act, which extended both the rights of copyright owners and the term of their protections.  A copyright now runs for the life of the author plus 70 years.  A copyright runs for 95 years for a corporate work.  That means you have no right to use these works online without the author's permission.  The worst part is that these protections descend automatically, like a gas cloud, the minute the work is written down.  So what happens is that people have to get permission to "use" the work.  The time and burden of getting all the necessary permissions makes it prohibitively expensive for the average user.  You need a lawyer just to forward an email these days. 

CC was created to push back these boundaries for a number of reasons.  Primarily, we are losing the right to access our culture.  Authors die, so there is no one to grant permissions; most books go out of print within a few years, but you can't locate the rights holder to get permission to republish.  CC creates tools and systems that attempt to reduce those barriers.  The first thing we did was create pre-set license agreements that any author can easily embed in his online content to let people know what they can do. A CC license is a way to put a sign on your work, which remains after you've moved on, that says "you can do this, but you can't do that."  All CC licenses include some "free" permission for public use.

One example of how well this worked came out of the London subway bombings last year.  A bystander took photos immediately after the blast and was able to upload them to the Net.  He added a CC license which permitted anyone to copy it for noncommercial purposes.  By the end of the day that photo was all over the world because people could rely on their right to copy it. We have had over 20 million individual uses by the end of 2005. The point is to encourage people to give back to the public in some way, to keep the public domain and our culture robust and accessible because the truth is that we all stand on the shoulders of giants. Most of our work can be attributed in some way to earlier material. 

Q: What is involved in your role as corporate counsel to CC?
Diane:
My work as corporate counsel is so much fun. The pace is dizzying, as with most Internet-based enterprises.  Almost everything we do is reflected online, so we always have to be assessing liability in foreign jurisdictions.  The insurance issues are extraordinarily complex, with staff and operation scattered all over the world.  I have to draft employment agreements to conform to local law in places like South Africa and Germany which makes me really appreciate how many colleagues I have around the world that can help me find out what I need to know.  Good ole Lexis just doesn't cut it with an international practice like this. The Internet provides a lot of the resources (but not nearly of the same depth) as large law firms have, so it allows a lot of small multi-nationals like CC to have a robust legal department.

I wish I could communicate how much fun it is to be on the cutting edge, which is why I went into this type of practice in the first place.  All that good stuff that one learned in class is useful, but the Internet still has some great unexplored territory where one gets to be part of making up the rules as one goes along.  So much of traditional practice areas involves trying to fit the situation into existing law; the internet allows, even encourages one to dream up new paradigms and to try to find new and practical solutions where no single jurisprudence applies.  It's terrifically creative.

Q: If you weren't at Berkman Center, where would you be?
Diane:
With Science Commons at MIT. Technology was my first love. 

Q: What is your favorite Berkman moment?
Diane:
Frankly, my favorite Berkman memories are around the early days when the small staff and even smaller office space made all of the Center's work so tightly integrated.  We could put all the Net experts in the same elevator at the same time.  I really miss that camaraderie and the expectation that we could make a huge difference because we were at the earliest forks in the road.