The ongoing debate about the burgeoning U.S. federal deficit has been short on bipartisan agreement – except for the proposition that “we can no longer kick the can down the road”. Yet that is pretty much what senior members of the House Judiciary Committee’s Subcommittee on Intellectual Property, Competition and the Internet asked ICANN to do with its new gTLD program at a 3-hour oversight hearing held today in Washington (hearing testimony and webcast available at http://judiciary.house.gov/hearings/hear_05022011.html). At one point the top democrat on the full Committee, Rep. John Conyers, took note of a statement from ICANN Board Chairman Peter Dengate Thrush that the Board had scheduled a vote on the launch for the first day of its June meeting in Singapore so that attendees could “have a party” celebrating the event, and then declared that he intended to communicate to Thrush that the Committee wanted approval held up past June. Subcommittee Chairman Bob Goodlatte nodded assent to that declaration, and closed the hearing with an admonition that “there should be nothing magical about June”.
We suspect that ICANN will take that suggestion under advisement and then proceed to Applicant Guidebook approval on June 20th. The U.S., after all, terminated direct oversight of ICANN in September 2009 and its only remaining leverage is the IANA contract to operate the authoritative root server, up for renewal this September. There were several suggestions for how that renewal might be used to influence ICANN, but ultimately a U.S. decision to move the IANA function out of ICANN would undermine its authority and bolster the forces that want to transfer ICANN’s responsibilities to a government-dominated UN-affiliated agency – unlikely when even witnesses critical of the gTLD program agreed that ICANN’s model of private sector governance was worth preserving.
ICANN Senior V.P. Kurt Pritz reminded the Subcommittee that the Applicant Guidebook, now in its 6th version, contained a suite of trademark and consumer protection measures that went substantially beyond those available for incumbent gTLDs, and that the program will not be static but subject to post-launch improvement. He also noted that the witness panel failed to include a single representative of the impatient investor group willing to risk real money on the new model (nor, might we add, did it include anyone representing the Department of Commerce in which U.S. Government ICANN relations are centered). Pritz ended his testimony with by declaring “it’s time to get on to the next phase”.
The remaining witnesses, heavily weighted toward the IP sector, raised the same concerns and objections we have heard innumerable times at ICANN meetings – The economic studies fail to make a compelling case for new gTLD demand. Defensive registration and trademark enforcement costs will skyrocket. Phishing and other scams will proliferate. ICANN policymaking is unduly influenced by the contracted parties, registries and registrars, who stand to reap “a bonanza” from new gTLDs. ICANN’s contract compliance is insufficient now and will never scale to the hundreds of new gTLDs.
ICA has voiced some similar concerns in the past, but many of the claims made against the program were exaggerated while others have been addressed adequately, if imperfectly, in the current Guidebook. In the end this hearing was the result of IP interests who never favored new gTLDs, who didn’t get their entire wish list incorporated in the Guidebook, and who then turned to lobbying the U.S. government and ICANN’s Governmental Advisory Committee (GAC) for one last bite at the policy apple.
So, while many witnesses called for ICANN to “Mind the GAC” – a somewhat curious position for business interests who want to retain its private sector model and keep it out of the clutches of government control – we would add the proviso that the GAC should be minded, or at least paid serious attention to, on matters of direct governmental concern such as law enforcement, but should be given considerably less credence when it parrots the agenda of corporate IP interests.
The recent GAC advice to the Board on new gTLD rights protection matters (http://gac.icann.org/press-release/further-gac-advice-new-gtld-rights-protection-mechanism), for example, proposes to extend protections, including the availability of Uniform Rapid Suspension (URS), to trademarks registered under the most lax national regimes and without any use requirement. It would extend IP sunrise and claim service protections not just to trademarks but to any combination of a mark and a keyword, plus any and all typographical variations designated by the trademark owner without limitation. On the URS, the GAC also continues to insist that the standard of proof required of a complainant be lowered from “clear and convincing” to “preponderance” of the evidence, the same as now required for a UDRP, even though the URS has always been portrayed as being reserved for “slam dunk” cases of infringement requiring a higher standard of evidence. The GAC’s justification for this position is that “The GAC remains of the view that this burden equivalent to that required in criminal law is too burdensome for rightsholders” – but the GAC is just plain wrong on that point, for at least in the U.S. the standard of proof for a criminal conviction is the much higher “beyond a reasonable doubt”. This is exactly the kind of confused and overreaching “advice” that should not be minded.
So, for our part, if the choice before the ICANN Board is to finalize the Guidebook in Singapore or delay once again so that IP interests can seek to further erode the legitimate rights of registrants, we prefer the former (but we fully intend to file final comments on the current Guidebook that address our remaining concerns). Then ICANN can move on to consider meaningful UDRP reform, a subject on which we intend to devote much time and energy to achieve a more effective, predictable, and balanced rights protection regime.
(A final note: In answering one question Kurt Pritz stated that “domainers are against new gTLDs because it will drive down the value of beachfront properties”. We spoke with him after the hearing and pointed out that, while some domainers are skeptical that most new gTLDs will be a success, and while ICA has raised concerns about an unlimited rollout and specific aspects of the Guidebook, we have never opposed new gTLDs per se and don’t know of any prominent domainer who has publicly opposed the program. In fact, while the domain industry has a diverse spectrum of views on this matter, we know of many who plan to invest in new gTLDs or are providing consulting services to applicants. Kurt agreed that he had misstated the industry’s position.)