This paper will begin with a look at the fissures in the seabed of the DNS by comparing how the management and policies relating to domain name registration and challenge have shifted and diverged in different jurisdictions as well as by examining the inadequacies of the original registration regime (ICANN) and challenge policy (UDRP). After identifying the problem, suggestions will be made to resolve them in the best possible way, which require a revisit of the stakeholder and policy interests in the Internet and the ownership and control of domain names that essentially function as an important gateway to the WWW in order to rebalance these interests in an attempt to achieve greatest equilibrium. Amendments will be proposed to both the registration and challenge regimes as well as to the structure and hierarchy of domain name administration which should be a globally coordinated effort just as the DNS is a common entryway to the global property that is the WWW.

Sharman followed a few months after the groundbreaking US Supreme Court case of MGM Studios v Grokster Ltd 3 (‘Grokster’) that had acknowledged the Sony safe harbour for technology providers but also introduced an inducement of infringement doctrine to deal with reprehensible conduct of infringers.

While both cases involved similar technology and shared a number of similarities on the facts and legal principles4, a closer examination of Sharman shows that the net of copyright infringement in P2P filesharing is cast wider than that in Grokster.

The effect of Sharman is an increased burden on the technology provider and the potentially tremendous consequences on innovation due to the lack of a clear safe harbour as well as the widening of the design obligation.