NTEN is organizing a call this Thursday, December 5th, at 12 PM PST, 3 PM EST. They will be joined by Electronic Frontier Foundation, The National Council of Nonprofits, and Internet Society chapter leaders, as well as Jon Nevett from Public Interest Registry, and Erik Brooks and Nora Abusitta from Ethos Capital. Andrew Sullivan from Internet Society has been invited but has not confirmed participation.

You do not need to register with NTEN to participate. NTEN will post access details by 12/4/19 on this event listing.

Anybody interested in this important and controversial issue us encouraged to attend the call, submit and ask questions of the participants. To submit questions in advance, please email savedotorg@nten.org.

Events

The original justification for awarding the .Org registry contract to ISOC was its public interest focus and commitments. If ISOC is no longer associated with the .Org registry, that justification for awarding the Registry Agreement no longer exists.  Therefore, it would be reasonable for you to withhold your approval of the assignment to a private equity company.

ICANN has the contractual right to reasonably withhold approval of the purported sale pursuant to Section 7.5 of the .Org Registry Agreement and to terminate the Registry Agreement pursuant to Section 7.5(f) in the event of a consummated transaction.

The ICA urges the ICANN Board of Directors to properly fulfill its obligations to protect nonprofit registrants from the harm that will likely come from a private equity firm owning the cherished .Org registry, home of nonprofits.

Read the full letter here.

ICA Letter to ICANN Board of Directors – November 15 2019

Zak Muscovitch, General Counsel of the ICA, was invited by the World Intellectual Property Organization (WIPO) to present at its symposium on the occasion of the 20^th anniversary of the UDRP held in Geneva on October 21, 2019.  This invitation was a rare opportunity to share the perspective of domain name investors to an audience of UDRP panelists.  UDRP panelists are required to peer into the souls of domain name investors to determine whether the domain name investors’ actions are badly intentioned or not.  UDRP panelists are usually quite familiar with, and sympathetic to, the views of trademark holders, as many indeed come from the trademark bar.  Yet UDRP panelists too often have little familiarity with the domain name industry or with the perspective of the domain name investors whose actions they are judging from afar.

Presenting on two panels, Muscovitch explained that domain name investors are important stakeholders in the UDRP process and are not cybersquatters.  Further, he made the point that the UDRP is not intended to only serve trademark interests, but also to protect the rights of registrants. This is a crucial and precarious balance and the UDRP must never fall prey to attempts to tilt it further in favour of trademark owners.

Since its establishment 20 years ago, the UDRP has proved to be a double-edged sword. On one hand, domain investors have, most of the time, been able to successfully use the UDRP to avoid court proceedings and to save their domain names from predatory attempts by trademark owners to seize valuable generic domain names. But on the other hand, over the years we have seen many very troubling and unfair decisions. Indeed, over the course of 20 years, we have even seen UDRP panelists change their mind about what is fair, transferring domain names in the past which they would not transfer now. Over the years, some panelists have often begrudgingly begun to accept that investing in inherently valuable and generic domain names is a bona fide business and is entitled to protection.

After many years of zealous advocacy by domain name lawyers and by the ICA, we are finally at a point where the UDRP has some degree of consistency, credibility, and stability, though we do continue to on occasion see very troubling outcomes and approaches by panelists. Moreover, there are numerous areas where procedural reform is required, as set out in our UDRP Reform Platform of 2018.

Yet despite that, there are those amongst the IP bar that are tempted to try to re-jig the UDRP to increase its breadth and scope, thereby directly harming domain name investors. One of the ways that has been floated is to change the “conjunctive” required bad faith registration AND bad faith use, to “bad faith registration OR bad faith use”. This could mean that a registration that was clearly registered in good faith, for example, prior to any trademark rights arising, could be taken away in the event of an unintended instance of a bad PPC link, or even perhaps, due to non-use.

Muscovitch made it clear to the assembled panelists, that in his view, this would be a severe and ill-advised change to the UDRP that would upset the 20 years of case law and balance that has been achieved to date. Moreover, attempts to introduce such radical substantive changes to the UDRP by trademark owners would surely be met with corresponding demands from registrants. In the ICA’s view, reform can be introduced to the UDRP via procedural changes and by clarification in the interpretation of the UDRP text rather than by changing its text. After hearing the ICA’s submissions, it appears that most of the assembled UDRP panelists have agreed – the UDRP should not see such radical changes.

The ICA would like to extend its gratitude to WIPO for inviting the ICA to participate in this important symposium on the UDRP and to thank the assembled panelists for the open and fair hearing that was received. The ICA believes that collaborative and constructive efforts to improve the UDRP remain possible without introducing any measures that would degrade investors’ ability to successfully defend their investments. The ICA looks forward to the work of the ICANN Working Group on the UDRP which will get underway shortly.  The ICA hopes that trademark interests and investor interests alike will work together to ensure that balance exists in the UDRP as it was intended.

During ICANN’s public comment period on lifting price caps on .org domains, over 3200 people submitted comments, overwhelmingly opposing price cap removals.

ICANN however, seemingly ignoring these comments, has granted PIR the right to raise prices on .org domains.

In response, NameCheap, a well-known domain registrar, has submitted a Request for Reconsideration to ICANN. Yesterday, ICANN’s Ombudsman, Herb Waye, sided with ICANN, equating many of the comments submitted as “spam”, generated through form letters provided by the ICA.

ICA is hugely disappointed in the Ombudsman’s response, which mischaracterizes the nature of the submitted comments. We ask for an apology to the numerous people who sent those comments in and to retract his ill-advised statements. 

You can read the full letter we sent to the Ombudsman here.

If you’re inclined to let ICANN know how they can improve their comment process, you have until tomorrow, Friday 13th, to fill out their survey here. Ironically, one of the questions in the survey asks whether you’d “respond more often to Public Comments if the consultation included short and precise questions regarding the subject matter.”

Letter to ICANN Ombudsman September 12, 2019

ICA’s recommendation is that while IGOs and INGOs should have effective access to rights protection mechanisms which reasonably meet their unique requirements not to submit to national courts, no new procedure is required because they can use the UDRP.

Read the full letter: Letter to Mary Wong re GNSO Policy Development Process on IGO-INGO Access to Curative Rights Protection Mechanisms Policy Recommendations for ICANN Board Consideration

ICA will be holding a public webcast, with Michael Palage and Frank Cona, developers of the “WIPO Model” for post-GDPR access to non-public Whois data. Michael and Frank will present the model and answer your questions on WEDNESDAY, JULY 10, at 1 pm EST. Registration is now open.

The webinar is open to anyone interested in learning more about this model! Brokers, registrants, investors, journalists, researchers, come and find out happens to domain Whois research after GDPR!

Find out if the WIPO Universal Access Model potentially provides Whois access;

• To secondary marketplaces and escrow services for verification and compliance?
• To brokers, agents, journalists, and researchers for due diligence, investigation, and acquisition purposes?
• To IP, domain name, and business lawyers for domain name disputes and transactions; and
• Are there benefits for registrant identification purposes, domain name portfolio management, and accessing registrar services?

The presentation, Third Party Access to Non-Public Registration Data, will take about 30 min, followed by a Q&A and comments session. Register today!

ICANN’s decision to execute the new .org Registry Agreement despite overwhelming public opposition is greatly concerning to stakeholders and raises serious questions about the so-called “bottom-up multi-stakeholder model”. We have some questions.

We put the questions into the attached letter to Cyrus Namazi, Vice-President of the Global Domains Division, the group at ICANN responsible for the terms found in the .org Registry Agreement. We aren’t the only ones asking how ICANN is acting in the public interest when it adopts policies nearly universally condemned by those affected by those policies. We look forward to Mr. Namazi’s response.

Letter to Cyrus Namazi re .org Renewal

In addition to the previously submitted comment letters on the .org and .info registry agreements, the ICA has also submitted comments to ICANN on the .biz and .asia registry agreements.

ICA Comment on Asia Proposed RegistryAgreement Renewal

ICA Comment on biz Proposed Registry Agreement Renewal

In a statement released today, PIR, the operator of the .ORG domain name registry, did not rule out the possibility of substantial price hikes on .org domain names if its new proposed contract is approved by ICANN.

In response to the thousands of objections submitted to ICANN by individual registrants, charities, religious groups, community organizations, and some of the largest and most prestigious organizations in America, PIR asked its customers to “rest assured” that it will not raise prices “unreasonably” and claims that it has “no specific plans” to hike prices.

Conspicuously absent however, is any promise to its customers not to raise prices beyond its current 10% price hike cap. Clearly, PIR is keeping all of its options open, and even in the professed absence of “any specific plans”, it is apparent that PIR likely has general plans to raise prices beyond the current 10% price cap with no limit in sight. This is hardly surprising, for if PIR intended to limit price hikes to the generous currently permitted 10% per year, it would have had no need whatsoever to request the removal of all price caps in the new proposed contract, and accordingly PIR’s claim that it is “simply moving to the standard registry agreement” rings hollow. If PIR was truly committed to keeping prices “reasonably low”, it would have simply agreed to keep the current 10% annual cap on price increases.

Indeed, the so-called “standard registry agreement” is only standard for the new gTLD domain names that were bought and paid for by private interests and which therefore have none of the unique characteristics of a legacy TLD that has been home for organizations throughout the world, long before PIR was awarded the exclusive contract by ICANN.

Despite PIR’s claim that it is “constrained by the competitive market”, PIR is in fact the only source of .org domain names.  If the over 10 million .org registrants wish to continue using their existing domain names they are forced to pay whatever price PIR charges.  If a .org registrant does not pay whatever inflated fee is levied by PIR for the ability to continue using its domain name, the registrant faces the unacceptable prospect of both an expensive and disruptive rebranding and the abandonment of its .org domain name to be taken over by another user with unknown intentions, perhaps even to undermine the mission of the current non-profit registrant.  It is the unique and otherwise unconstrained control over the online homes built on .org domain names that makes price caps on .org domains so crucial in protecting the vibrant and vital community of non-profits that relies upon .org domain names.

Despite PIR claims that current registrants will have “the ability to lock in pricing at the then current rate for 10 years”, the actual proposed contract expressly leaves this up to particular registrars to offer such terms, in their discretion. Similarly, under the proposed contract, existing registrants are not entitled to receive notice of pending increases from PIR, but rather PIR only agrees to give notice of hikes in renewal pricing to registrars. Registrants may thereby be left exposed to dramatic price hikes on their existing domain names after their current term expires.

What has apparently been lost in the contract negotiation is the fact that ICANN is supposed to protect registrants and keep prices low, particularly in legacy TLDs where registrants have relied upon existing price constraints.

Legacy TLDs should not be treated like the new gTLDs nor priced like them nor managed like them.

For further reading, see:

“ICA Comment Letter Regarding Proposed Renewal of the .org Registry Agreement” (Submitted to ICANN, April 10, 2019)

“The economics of domain name prices” (Domain Name Wire, April 29, 2019)

“How ICANN uses the .Org registry to fund the Internet Society” (Domain Name Wire, April 24, 2019)

“The Spurious Justifications for Eliminating Price Caps on .org and Other Legacy Domains” (CircleID, April 23, 2019)