On Monday, July 13th, ICANN opened its global consultation summer road show on Broadway in the ornate Hudson Theatre in the Millennium Hotel. The show was very low in entertainment value and, while the orchestra seating was fairly well filled, the balconies sat empty. It closed after a single run and is now on its way for a July 15th opening, and closing, in London.
I entered the show with strong reservations about its purpose and its selection of speakers – concerns that I shared on Saturday the 11th in an e-mail sent to members of ICANN’s Business Constituency, of which ICA is an International Member (my e-mail is reproduced at the end of this posting). They were reinforced when, upon registration for the event, I was handed a four page document entitled “New gTLD Program in Brief” which concluded its answer to the question “What is ICANN doing to protect trademark holders?” with, “Finally, ICANN has been working closely with the trademark community through the Intellectual Property constituency to find solutions to potential issues for trademark holders in implementing new gTLDs.” That statement fails to note that many of the “solutions” proposed in the IRT Report are very controversial throughout the ICANN community beyond the IPC. (Needless to say, the memo did not ask or answer the question, “What is ICANN doing to protect registrants from the solutions proposed by trademark holders?”)
Even more worrisome were the feedback forms distributed to every attendee. Despite the fact that the official comment period on the IRT report closed one week ago, on July 6th, here was ICANN requesting feedback on every major aspect of the IRT Report’s recommendations from Consultation attendees. Feedback Form 3 dealt with the Uniform Rapid Suspension System and asked for one of two boxes to be checked:
• I am broadly in support of the URS; or
• I am broadly opposed to the URS
Below the boxes was a large white space in which attendees were invited to jot down their “General comments or questions about the URS”. Finally, at the bottom of each page was a line reading “my interest in this matter is defined by my work as/with a:” followed by a long list of possible connections, such as registry, registrar, or large corporation – but, remarkably, with no listing for “registrant” (other than the catch all “other”). ICANN thus continues its tradition of failing to perceive the existence of registrants, as is demonstrated by its finance dashboard (see http://forms.icann.org//idashboard/public/) which shows in bar graph form that ICANN receives the vast majority of its funding from registrars and registries, but apparently not a single dollar from registrants who fail to get any bar (even though they supply nearly all the money that flows through ICANN’s contract partners). Registrants to ICANN are seemingly like plankton to Moby Dick.
NY-based attorney Rita Rodin, a member of ICANN’s Board, furnished a brief introduction in which she stated that the Board was committed to protecting all rights on the Internet as much as possible (one hopes that the Board includes registrant rights in that commitment) and that she hoped the day’s event would lead to compromise, which was interesting given the IRT’s assertion that it had already made so many compromises (like not proposing capital punishment for cybersquatting).
Next Kurt Pritz, the senior ICANN staff person associated with the new gTLD program, stated that new gTLDs would not be implemented at the expense of trademark holders or registrants (well, that was a welcome assurance – seriously) and then went on to state his hope that the day would result in “solid recommendations for the Applicant Guidebook” (which seemed to validate our concern that the closed comment period on the IRT was being reopened).
Then began the most tedious portion of the day, in which six members of the officially disbanded but briefly reunited IRT began a presentation on their work and recommendations that those of us just back from Sydney had sat through several times already. Needless to say, nothing new was heard. They were followed by long and arcane remarks by Brian Beckham of WIPO. Much more riveting were remarks made by Richard Tindal of Demand Media, who panned the proposed Globally Protected Marks List (GPML) and then went on (contrary to my weekend expectations) to severely critique the URS, saying that as proposed it would surely be abused by complainants. He then proposed myriad changes to it, few of them likely to arouse enthusiastic support from the trademark world.
Following an hour lunch break attendees were given an opportunity to line up at two microphones to ask questions or make comments. Many from the fair use and registrant community laid into various aspects of the IRT recommendations, especially the URS, while representatives of trademark interests bemoaned the whole idea of new gTLDs and complained that the IRT’s proposed solutions didn’t go far enough.
After about 15 minutes wait I finally reached one of the mikes and made remarks on behalf of ICA along these general lines:
• Several times at the Sydney meeting, ICANN Board Chairman Peter Dengate Thrush stated that the IRT’s mission was to put together trademark protection recommendations and then see if they could garner consensus support.
• Anyone who had been at the public sessions in Sydney or who had reviewed the comment letters filed on the IRT Report know that there was only controversy, not consensus, on many of those proposals.
• The IRT Report’s “sell by” date was July 6th, the end of the comment period, and there had been no sale to the ICANN community.
• As I has spoken twice to the Report at public sessions in Sydney, and as ICA had just filed a lengthy comment letter, I was not going to repeat our substantive arguments against the URS at this session – both to avoid boring the audience and because we did not recognize the validity of soliciting further comments on the report at the NYC and London consultations. Either those Feedback Forms should be ignored or the comment period should be reopened to everyone.
• However, I would reiterate our firm belief that the URS was a major new policy proposal and therefore, under ICANN’s rules, could not be implemented as a mere technical detail but had to be run through a formal Policy Development Process (PDP).
• While ICA had been accused by trademark attorneys in Sydney of not being constructive, or of seeking to obstruct the introduction of new gTLDs, nothing could be further from the truth. In fact, we had sought a seat on the IRT to provide constructive input, we had no major objection to two of the IRT’s recommendations, and we were seeking to be constructive by expressing our good faith willingness to participate in an expedited PDP on UDRP reform. That could result in a balanced work product that addressed current abuses of and problems with the UDRP for both registrants and trademark interests, and could put that improved UDRP in place across the entire gTLD space, both incumbent and new – and that would be in the best interests of trademark holders, as it would include .com. We are ready to engage constructively — so, please ICANN, give us a constructive process to participate in!
• If ICANN wants continued community support for its professed model of bottom up consensus policymaking it has to put reality into that rhetoric by conceding that the URS is a major new policy proposal and treat it accordingly. And if it wants to be truly independent following the termination of its JPA relationship with the U.S. it has to avoid taking actions look like legislating beyond terrestrial law as that just invites governments to step in on a multinational basis.
Noted domain registrant attorney John Berryhill was also in attendance and, while praising much of the IRT’s work, recounted several instances of serious complainant UDRP abuse that needed to be addressed by comprehensive UDRP reform. John and I talked later and he indicated his willingness to bring his expertise to bear in any expedited PDP along the lines of ICA’s suggestion – and I would guess that many of the industry’s other top legal minds would be willing to contribute as well (Paul Keating, for example, submitted a thoughtful IRT comment that proposed a streamlined manner of dealing with defaulting UDRP cases as a substitute for the URS).
As the long day drew to a close a panel discussion of potential malicious behavior at new gTLDs demonstrated that this topic, one of the other four “overarching issues” that ICANN has committed to effectively address before opening the new gTLD application window, is far behind the trademark discussion in terms of even grappling with the problems much less proposing solutions. That had many in attendance speculating that ICANN might have to again push back its projected opening of the window, now scheduled for the first quarter of 2010.
Toward the very end of the day’s program I raised a question regarding what happens if ICANN staff, after reviewing comments and statements, decides that the URS or another IRT recommendation indeed constitutes new policy. Even after I got an answer I’m still not sure of exactly what happens, and this is clearly a subject that needs more inquiry.
So there you have it, my report on ICANN’s debut on Broadway. Was this show worth the cost of production? You might want to answer that question, because registrant dollars paid for it – even if registrants are absent from ICANN’s Finance Dashboard.
Here’s my weekend e-mail to members of ICANN’s Business Constituency, sent before I departed for NYC:
I am very puzzled, and indeed disturbed, by this Outreach Program as well as by why ICANN is undertaking the considerable expense of facilitating it.
The explanation of the events (at http://www.icann.org/en/topics/new-gtlds/consultation-outreach-en.htm) states:
With the expected introduction of New generic top-level domains (New gTLDs) into the market place in 2010, ICANN is hosting a series of live events and webinars starting June 2009. These events are designed in a wide range of formats to address different levels of knowledge.
The purpose of these events is to explain the Program, share the progress that ICANN has made to-date and to receive feedback from the community that will facilitate shaping the program.
These events are geared towards businesses small and large, trademark experts, professional associations, consumer and other civil society groups, members of the domain name industry, government officials, potential applicants and the ICANN community. All events are free of charge, but pre-registration is required.
During the upcoming consultation sessions in New York (13 July) and London (15 July), attendees will have the chance to hear from ICANN staff and others who have contributed to the ongoing process, including members of the Implementation Recommendation Team (IRT) that submitted their report to the ICANN Board on measures to protect intellectual property. The proposed events in Hong Kong (24 July) and Abu-Dhabi (4 August) will mainly focus on the New gTLDs and Internationalized Domain Names (IDNs) programs details. The main language of the events is English. (emphasis added)
I will be attending the NYC event, and it and London are billed as "Live Consultations", described as follows:
Live consultations will engage the global Internet community to discuss workable solutions to outstanding issues on specific aspects of the program, particularly trademark protection and malicious behavior. These sessions are aimed at people that have been closely following the Program development and still have concerns.
The Hong Kong and Abu-Dhabi programs are more general "Live Outreach" events meant for a more general and less well informed audience; as no agenda has yet been posted for either event it is not possible to know what shape they will take.
A review of the Agenda for the NYC event (http://www.icann.org/en/topics/new-gtlds/ny-agenda-speakers-13jul09-en.pdf) reveals that the vast majority of its focus is on trademark protection. The time breakdown is as follows:
General introduction — 30 minutes
Trademark protection (IRT Report) — 4 hours 45 minutes
Malicious behavior — 1 hour 30 minutes
Economic Impact & Root Scaling Security and Stability — 45 minutes
In other words, of the entire 7.5 hours of the program, more than 60% is devoted to trademark protection.
Given this heavy emphasis on trademark protection — and given the clear failure of the IRT report to garner consensus support from the community, as was apparent to anyone who attended the Sydney meeting or has reviewed a sample of the comments posted at http://forum.icann.org/lists/irt-final-report/index.html — one would have hoped that ICANN would seek to present a balanced presentation, acknowledging that those who have presented well thought out criticisms of aspects of the IRT Report "have contributed to the ongoing process" just as much as members of the IRT. But a review of the scheduled speakers shows that all but one is an IRT member or other person who will be strongly supporting its report; the only critic I can identify is Richard Tindal of Demand Media, and their principal concern is the proposed GPML. There is not a single speaker likely to criticize the very controversial URS, which critics (like myself, on behalf of ICA) have charged constitutes not only a major and unjustifiable diminution of registrant rights currently available under the UDRP but is also a major new Policy initiative, and not a mere technical implementation detail, and therefore cannot be adopted outside the normal PDP process overseen by the GNSO.
So my first question relates to why there is no adequate balance to this panel on trademark protection that recognizes the very real splits within the ICANN community on the IRT report? How are attendees adequately informed by such a one-sided presentation?
Another question is raised by the claim in the program description that these events will "receive feedback from the community that will facilitate shaping the program". What’s going on here? The IRT was disbanded after delivering its Report, and that Report was thoroughly debated in Sydney. The comment period closed this past Monday. So, from a procedural standpoint, any "feedback" received at these events, in which critics of the report are relegated to the audience, should have no effect on "shaping the program". As the NYC Consultation is aimed at individuals who have been "closely following the program development" all these individuals were either already heard in Sydney or had an opportunity to comment officially.
The Chair of the GNSO Council filed a comment, in her personal capacity, stating that the IRT was an attempt by trademark interests to have a second bite at the apple, to put proposals back in the mix that had already been rejected in the GNSO consensus process, and that adoption of the URS as a mere implementation detail would destroy the legitimacy of ICANN’s bottom-up consensus process:
…the work of the IRT, if it goes directly from the IRT to
implementation will not only constitute new top down policy but some
parts of it will be new policy that the GNSO specifically decided there
was no consensus for making. Going beyond the consensus making purview
of the GNSO to create policy as part of the implementation cycle of the
program not only directly contradicts the policy made by the GNSO but
also endangers the legitimacy of the entire consensus policy process.
Further one of the recommendations, the Uniform Rapid Suspension
System, constitutes an entirely new policy mechanism that affects
previous policy, the UDRP, without proper policy review. (http://forum.icann.org/lists/irt-final-report/pdfNhBqKA4CfN.pdf)
So do trademark interests not just get a second bite at the apple outside the GNSO consensus process, but also get extra time after the closing of the formal comment period to further "shape" the process? This is not only wrong but silly — from a substantive viewpoint, depending on who turns out, the NYC and London events can only demonstrate one or both of the following propositions:
• trademark interests strongly support the recommendations in the IRT report, produced by a group which had its membership and agenda controlled by the IPC
• other members of the ICANN community have strong reservations about or outright opposition to virtually every aspect of the IRT Report, including whether various proposals contained within it are major new policy initiatives that require a formal PDP process
Well, we already knew all that, didn’t we? I shall be very surprised if any feedback is received at the NYC event that has not already been fed to ICANN in Sydney or through the comment process.
A last question would be how much $ is ICANN spending to put on these events and to fly various staff around the world to them? And are any of the other speakers having their expenses covered by ICANN, just as members of the IRT received travel support at a time when ICANN tells other constituencies and supporting organizations that it lacks funds for their monetary support requests?
To put my comments here in context, I invite you to visit https://www.internetcommerce.org/node/198 which contains the text of ICA’s comment letter as well as an introduction that documents the IRT Report dissent and criticism coming from key ICANN constituencies. ICA supported some aspects of the Report with proper tweaking; while we took strong exception to the URS we suggested an expedited PDP that could put in place balanced UDRP reforms prior to the launch of any new gTLD in the fourth quarter of 2010 — this process could directly benefit trademark owners by addressing many .com problems, which is where the vast majority of their current infringement issues arise and are likely to keep doing so in the future. And, more important, it would respect and not run roughshod over ICANN’s policymaking process.
In closing, let me note two other news items of the last week to put this whole IRT debate in broader context:
• On July 8th Mary Kay Cosmetics sued Yahoo! for trademark infringement (http://www.thedomains.com/2009/07/09/another-day-another-suit-yahoo-sued-trademark-infringement-in-e-mail-advertising/) alleging that Yahoo! inserted links to unauthorized resellers in e-mails sent by Mary Kay salespeople send to their customers. I note this not to endorse the allegations but simply to observe that that trademark infringement suits are a growth industry and that even strong infringement critics and IRT report supporters like Yahoo! can find themselves in the cross-hairs.
• Comcast has just announced a "Domain Helper Service" (http://domainnamewire.com/2009/07/09/comcast-starts-typosquatting-domain-names/) that serves up ads against nonexistent domain names, mostly typos of legitimate trademarked names, thereby following in the footsteps of other major ISPs. If these names were registered as individual domains they might well be subject to UDRP or URS actions, but ISPs contend that serving up ad pages (primarily supplied by Google and Yahoo!) and not 404 error messages is a customer services and not typosquatting. So I wonder if we can get ironclad pledges from members of the ISP constituency (many of whom are strong IRT report proponents) that they will not serve up ads against any domain that has been suspended in a URS action? And if they won’t do that, then why are we taking the risk of tearing the ICANN community apart and destroying its policy-making process? After all, if an Internet user sees the same ads when they mistype micosofft.web what’s the difference if a domain owner or an ISP is pocketing the PPC income that may be generated?
If you’ve read this far, thanks for your time on this weekend.