Majority Comments say “No URS by Contract at .Cat & .Pro” – While Staff Report on .Travel Comments is Two Weeks Past Due

Once again, as it was with .Travel, the vast majority of comments on the proposed renewal Registry Agreements (RAs) for the legacy .Cat and .Pro gTLDs are united in their opposition to imposition of Uniform Rapid Suspension (URS) and other new gTLD rights protection mechanisms (RPMs) by contract, arguing that this is a consensus policy decision that can only be fairly made through the policy development process (PDP).

Comments following this general line of reasoning were filed on .Cat by, among others, the Electronic Frontier Foundation, IP Justice, ICANN’s Business Constituency (BC) and Non-Commercial Stakeholders Group (NCSG) — and of course the ICA along with individual comments filed by ICA Board member Nat Cohen and ICA members Jay Chapman and Greg McNair.

As we saw with the comments on .Travel, the only commenters supporting URS by contract at legacy gTLDs were ICANN’s Intellectual Property Constituency (IPC) and new gTLD portfolio registry operator Donuts.

An identical list of commenters and positions appears at the comment forum for .Pro.

A Staff Report on the .Cat and .Pro comments is scheduled to be filed on July 21st. But odds are that these will be late, given that the due date for the staff report on .Travel comments was July 5th but all that appears at its website is this – “Report Overdue”. It’s difficult to understand why it is taking staff so long to complete and post that document, because that Staff Report is supposed to be an objective compilation and summary of the comments received – and not a defense brief to justify the staff action of proposing the inclusion of URS in these renewal RAs that has drawn such broad criticism and opposition.

We will continue to monitor the .Travel website, along with those for .Cat and .Pro, to see when those Staff Reports are filed and what they say.

Meantime, here is what ICA said in the additional comments we filed on both .Cat and .Pro:

This comment by the Internet Commerce Association incorporates by reference and supplements the comment letter we filed in regard to the proposed renewal registry agreement (RA) for .Travel on June 21st.

The issues are essentially identical, in that:

  • The proposed RAs for. .Cat and .Pro are completely identical to .Travel in regard to incorporating the URS in Section 2 of Specification 7.
  • .Cat and .Pro are legacy gTLDs created before and for which the URS is a non-relevant implementation detail of the current new gTLD program, and is not a Consensus Policy enforceable against all gTLDs and contracted parties.
  • The notice published by ICANN regarding the proposed renewal RA clearly states that “ICANN has proposed” that the new gTLD RA be the starting point for contract renewal discussion and negotiation.

This issue of staff creation of de facto Consensus Policy arose several times at the just concluded ICANN 53 meeting held in Buenos Aires. At its opening session on Sunday morning, June 21st ICANN’s GNSO Council met with senior staff of ICANN’s Global Domains Division (GDD). Many Council members raised their own strong concerns about the staff action and its destructive impact on the GNSO’s role in making gTLD policy. GDD staff provided the weak response that “we did not push anyone to accept” the URS, maintaining that .Travel, .Pro, and .Cat registry operators had all “volunteered” to include it in their proposed renewal agreements. That justification strains credulity given that GDD staff proposed its inclusion as the starting point for registry agreement renewal.

As we stated in our comment letter regarding .Travel–

There can be no doubt that this is a staff attempt to create de facto Consensus Policy, as is clearly documented by the fact that the same objectionable provision appears in the proposed renewal RAs for .Cat and .Pro, both released for comment on May 28th. This evidences a deliberate and illegitimate attempt by contracting staff to create a series of precedents that would lead inevitably to the imposition of the URS on major legacy gTLDs such as .Org, .Net and .Com when they come up for renewal, despite the fact that the URS is not an ICANN Consensus Policy.

GDD staff also said they would change their position if the GNSO told them not to seek to impose new gTLD RPMs on legacy gTLDs – which is not only an impossibility for this proposed renewal RA, given the time required for the GNSO to establish policy via the standard PDP, but completely misunderstands and reverses the proper relationship between the stakeholders and staff. It is stakeholders who create ICANN policies through a bottom up process, which are subsequently administered by staff – not staff given free rein to initiate policy in a top down and unaccountable manner via contract negotiations until the stakeholders stop them.

The same concerns were raised when the Council met with the ICANN Board on the afternoon of June 21st, where they received a far more sympathetic reception. Several Board members agreed that staff should not initiate policy changes.

In addition to the concerns raised by Council members, and at community members at the Public Forum in Buenos Aires, the comments filed on .Travel ran overwhelmingly against incorporation of the URS in the renewal RA.

Only two comments supported the action by GDD staff to propose it as a starting point:

  • The Intellectual Property Constituency (IPC) stated that it “encourages Registry Operators to voluntarily go above and beyond the minimum rights protections. Whether adding new restrictions against abusive registrations, implementing blocking or creating new dispute procedures, those best practices should be encouraged and do not require a PDP for TLD Operators to implement”. We strongly disagree that there is anything voluntary about a process in which a supplicant registry in need of having its contract renewed must negotiate with ICANN staff who propose that inclusion of specific RPMs be the starting point for negotiations.
  • We therefore believe that legacy gTLD registry operators are not free to create and adopt new RPMs that alter the rights of existing registrants at the time of contract renewal because there is no one in the negotiating room to speak for the due process rights of their registrants. Indeed, such negotiations take place behind closed doors and are not transparent to affected stakeholders.
  • Further, the IPC’s claim that “there is clearly no requirement that an RPM must become consensus policy before it can be adopted by a registry. We have already learned that from Donuts and Rightside Registry, both of whom adopted a form of “blocking” as an RPM, which was also not consensus policy” completely misunderstands the critical difference between revenue-generating blocking policies promulgated by portfolio gTLD operators and dispute resolution policies. Blocking policies prevent domains from being registered in the first place and therefore have no impact on existing registrants, while alterations in dispute resolution policies can result in an existing registrant having its domain suspended, extinguished or transferred.
  • The IPC also fails to recognize the difference between a new gTLD, in which potential registrants have clear notice of any supplementary RPMs, and a legacy gTLD in which registrants should expect that additional RPMs will be adopted through a standard PDP that creates Consensus Policy.
  • The new gTLD portfolio operator Donuts, which maintained that the STI-RT that created the URS “never considered” whether it “should not be included in legacy TLDs”. All we can say is that Donuts’ recollection is quite different from ours, as we recall this question being raised multiple times and receiving assurances from STI-RT participants and others involved in the development of the new gTLD RPMs that they would not and could not be imposed on legacy gTLDs absent a subsequent review, followed by a PDP which adopted them as Consensus Policy.

In closing, we repeat the conclusion of our comment letter regarding .Travel —

Consensus Policy regarding RPMs must be vetted within the community to assure a proper balancing of the interests and rights of both trademark owners and domain registrants.

In order to assure that balance two indispensable steps are necessary:

  • The attempt to impose new gTLD RPMs on legacy gTLDs by contract must be withdrawn in recognition that such action is in violation of ICANN Bylaws. If staff is unwilling to retreat on this initiative then ICANN’s Board must assume responsibility and review all the issues at play, including compliance with the Bylaws, before any legacy gTLD RA with such a provision is made final.
  • Any further modification of the new gTLD RPMs must be considered within the context of a full PDP. We are far past the implementation phase of the new gTLD program. Further, it is clear that the applicability of the RPMs to legacy gTLDs is now primed for discussion. Unless both RPM modifications and legacy gTLD applicability are considered within the PDP framework there is a substantial risk of a bait-and-switch policy process, in which RPMs are made applicable to legacy gTLDs and then substantially altered via a backdoor, non-PDP process.

In addition, we repeat the request that ICA made directly to ICANN’s Board at the Buenos Aires Public Forum –

First, we need a commitment that any further alterations of the new gTLD RPMs will be made through a standard PDP. We are far past the implementation details stage and it is now crystal clear that these decisions will implicate legacy gTLDs as well.

Second, if GDD staff ignores the overwhelming weight of comments and retains the URS in the final RAs for legacy gTLDs, you need to vote up and down on those RAs. You need to “own” that decision and in that way indicate whether you believe this GDD staff action is or is not acceptable.

We hope that GDD staff will recognize that they have overreached on these legacy gTLD contracts and that the proper action is to strike the RPMs adopted from the new gTLD program from them and leave that decision to the multistakeholder community.

If staff does not do the right thing then we will press for an up and down Board vote on this and the other affected contracts before they take effect.

 

Sincerely,

Philip S. Corwin

Counsel, Internet Commerce Association

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