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By Philip S. Corwin, ICA Counsel

The 59th ICANN meeting was held in Johannesburg, South Africa from June 25th to 29th. Under ICANN’s new meeting schedule this mid-year gathering is the somewhat shorter “B” session devoted to intensive policy development work. This report details my engagement as ICA Counsel on your behalf and current and expected benefits to ICA members.

The meeting’s first day was exclusively dedicated to the ongoing efforts of the Work Stream 2 (WS2) ICANN accountability process. It deals with issues that, while important, did not have to be resolved prior to the IANA transition that took place on October 1, 2016. Many WS2 issues, such as greater transparency through improved community access to internal ICANN memos and documents, have been completed or are close to it. ICA members have identified greater ICANN accountability and transparency as a priority goal, and our continued engagement in this process will help maximize the benefits.

The most contentious subject remains ICANN’s jurisdictional status as a California-based, U.S. non-profit corporation. While a minority of Jurisdiction subteam members continue to seek exploration of alternative incorporation venues, discussions in Johannesburg appear to have established that the majority of members believe that it’s past time to accept U.S. jurisdiction given that the entire new accountability structure meshes with California law, and that there is no consensus for considering alternatives nor any compelling reason to do so. That outcome is consistent with ICA’s preference that ICANN remain situated in the U.S. to provide continued certainty as to applicable law and judicial oversight of its operations. The subteam will continue exploring jurisdiction issues that arise in regard to ICANN contracts and non-U.S. offices.

All of the ongoing policy development process (PDP) working groups held long open sessions in Johannesburg, including the two that I co-chair. The first, which is nearing completion after three years of work, involves the access of International Intergovernmental Organizations (IGOs – mostly UN agencies) to the UDRP and URS. IGOs, backed by the Governmental Advisory Committee (GAC), have been pushing for their own separate versions of those proceedings, based on broad claims of judicial immunity, in which a domain registrant would not have access to judicial review of an adverse initial decision but just another arbitration-type proceeding if they thought the initial decision was ill-founded. After engaging an independent legal expert regarding the scope of IGO jurisdictional immunity, the WG determined that there was no sound basis for the IGO’s broad immunity claims and instead is focusing on assuring that IGOs have ready access to the UDRP and URS as well as means to file via third parties and thereby safeguard the actual scope of their immunity. As we work toward wrapping up our efforts this fall, we are considering what to do if an IGO were to succeed in asserting immunity in a post-UDRP decision judicial process and thereby got the court action dismissed. Current UDRP language would let the UDRP decision be enforced upon dismissal of the judicial action brought by the domain registrant, but we are considering changing that to provide the domain registrant with a de novo review by an arbitrator in that narrow circumstance in order to assure a meaningful registrant appeal while respecting judicially determined IGO immunity. This WG is aiming to conclude its deliberations and submit a final report prior to the next ICANN meeting. ICA members will benefit from the WG’s insistence that domain registrants continue to have access to available judicial redress from an adverse UDRP decision regardless of the Complainant’s identity, as well as potential creation of a new review forum where one might not be otherwise available under current practice.

The other WG that I co-chair is the one reviewing all rights protection mechanisms (RPMs) in all gTLDs. This is the PDP that will commence the first-ever review of the UDRP in mid-2018. But for now we are focused on the RPMs created for the new gTLD program, and in Johannesburg we heard reports from two subteams examining sunrise registrations for trademark owners as well as trademark claims notices sent to those seeking to register a domain that’s an identical match to a trademark submitted to the Trademark Clearinghouse. That WG’s three hour session ended with a productive dialogue in which registries and registrars provided their perspective on operational aspects of these RPMs. ICA members have identified meaningful UDRP reform as their top policy priority, and my participation as a WG co-chair helps provide assurance that the review process will be balanced and comprehensive.

ICANN’s GNSO policymaking Council also held several sessions during the meeting. I serve on the Council as one of two elected representatives of ICANN’s Business Constituency. One issue of growing concern to Council members is a push by the GAC and other ICANN constituencies to address certain issues relating to gTLDs through a Cross-Community Working Group (CCWG) rather than via a GNSO PDP. While the PDP process welcomes the participation and input from anyone in the ICANN community, the ultimate decisions are made by the GNSO as this is the foundation of the bottom-up multistakeholder policy process rooted in the private sector and civil society rather than governments. The hot topic on which this debate is centered involves geographic names in new gTLDs, with governments pressing to have rights of pre-approval for almost any map name including villages, streams, and any landmark of cultural significance. On both process and substance, Council members reaffirmed their commitment to defend GNSO primacy on gTLD policy and to resist governmental overreach lacking a sound basis in law or policy.
The other hot issue discussed at ICANN 59 was the European Union’s (EU) General Directive on Privacy Regulation (GDPR), which will become effective in the spring of 2018. GDPR could subject registries and registrars to massive fines for revealing now-public WHOIS data, and there was extended discussion in Johannesburg regarding potential means of by which these contracted parties might comply with the Directive while continuing to collect and make available WHOIS data. ICANN staff is also investigating whether some GDPR exception can be granted for WHOIS data given its key role in consumer and IP protection.

ICANN 60 will take place in late October in Abu Dhabi. That is the week-long Annual General Meeting, and many of these same issues will be revisited there. I have just been re-nominated for a final term as one of the Business Constituency’s two representatives on the gTLD policy-making GNSO Council, and if I am re-elected (as appears very likely) I will commence that final two-year term at ICANN 60. My participation at this high-level of the ICANN policy process increases the stature of the ICA within the ICANN community and also provides enhanced access to Board members, senior staff, and internal information flows.

ICANN 60 will also see the retirement of ICANN’s current Board Chairman, Steve Crocker, and we are waiting to see who will replace him to lead post-transition ICANN’s Board. So stay tuned because all these developments can affect the domain marketplace and your rights in your portfolio.

The Proposed Renewal of the .Net Registry Agreement (RA) was published for public comment by ICANN on April 20^th. The biggest surprise about the proposed contract is how little it differs from the current one between ICANN and Verisign.

Conspicuously absent from the agreement is the new gTLD rights protection mechanism (RPM) of Uniform Rapid Suspension (URS). For the past two years ICA – along with ICANN’s Business Constituency and Non-Commercial Stakeholders Group – has been protesting the appearance of the URS in other legacy gTLD renewal agreements, contending that this is a policy decision specifically assigned under the Charter of the ongoing ICANN working group reviewing all RPMs at all gTLDs (note: ICA Counsel Philip Corwin is a Co-Chair of that WG). Trademark interests have countered that legacy registries were free to “voluntarily” adopt the new RPMs, although the presence of beneficial contract revisions or substantial financial concessions in those other renewal agreements raised questions about whether the URS inclusion was truly voluntary or a quid pro quo concession.

ICA had been concerned that Verisign would seek a reduction of the $0.75 .Net domain fee paid to ICANN to the standard registry fee level of $0.25 – and might acquiesce to URS in exchange for it. That change that would have netted Verisign savings of $7.6 million per year at the current level of 15.2 million .Net domain registrations. But the proposed renewal RA maintains the fee at $0.75, with the extra revenue still earmarked for special restricted funds for developing country Internet communities’ participation in ICANN, and to enhance and facilitate the security and stability of the domain name system (DNS).

While we have no insight as to what actually transpired during the closed door negotiations between ICANN’s Global Domain Division (GDD) and Verisign, we hope that ICA’s repeated protests against imposing URS via contract renewals was a factor in alerting the parties to the heated controversy that would arise from taking such action in regard to the second most populous gTLD. As one prominent industry publication recently noted:

Also likely to cheer up domainers is the fact that there are no new intellectual property protection mechanisms in the proposed contract.

Several post-2000 legacy gTLDs have agreed to incorporate the URS into their new contracts, leading to outrage from domainer organization the Internet Commerce Association.

ICA is worried that URS will one day wind up in .com without a proper ICANN community consensus, opening its members up to more risk of losing valuable domains.

The fact that URS is not being slipped into the .net contract makes it much less likely to be forced on .com too.

The .Com RA was extended last year through 2024, while the decision by the RPM Review WG on the extension of relevant new gTLD RPMs to legacy gTLDs will likely be made within the next year. Trademark interests that extolled the “voluntary” adoption of URS by other registry operators will have to employ pretzel logic if they plan to comment that Verisign should be involuntarily compelled to impose it on .Net registrants.

The proposed renewal RA will also let Verisign continue to increase .Net wholesale prices by up to ten percent each year. Verisign exercised that option in each of the six years of the current .Net RA, raising the wholesale price from $4.65 in 2011 to the current level of $8.20. Verisign will likely continue to do so under the proposed renewal agreement, at least until such price increases demonstrate a marked negative effect on .Net renewals. While carrying costs will thus likely increase for investors holding .Net domains in their portfolios, at least the potential price hikes are capped and predictable.

The proposed renewal RA does contain a number of materially new provisions, many of them drawn from the new gTLD and .Org RAs. One even provides ICANN with new powers in the highly unlikely event of a Verisign bankruptcy. But all are technical in nature, and none appear to raise any significant concerns for the domainer community.

The comment period closes on May 30^th, and ICA will have more to say about this proposed RA by that date.

ICA fully supported the insistence of ICANN’s community that the IANA Transition had to be accompanied by substantial improvements in ICANN Accountability.

Some of those improvements were deemed to be necessary preconditions to the Transition. They included substantial revisions of ICANN’s Bylaws to reflect new community powers, such as the ability to veto budgets or remove Board members. Those were Workstream One Accountability measures.

But Workstream Two measures,  to be accomplished post-Transition, are in many instances just as important. And that is particularly true of the steps necessary to make ICANN a far more transparent organization so that stakeholders can be fully aware of all that is going on and how decisions are reached.

That’s why ICA just filed a letter in strong support of the “CCWG-Accountability Work Stream 2 – Draft Recommendations to improve ICANN’s Transparency” published for public comment on February 21, 2017. Its most important recommendations relate to transforming ICANN’s Document Information Disclosure Policy (DIDP) – ICANN’s version of the US Freedom of Information Act (FOIA) – into a far more robust and useful tool.

At present the DIDP is a weak and loophole-riddled procedure, allowing ICANN staff far too much discretion to dribble out shreds of data while denying most of a disclosure request under broad and subjective exemptions. As stated in our letter:

Accountability requires transparency. No organization can be held accountable if it is permitted to impose excessive constraints on the release of internal documents and the vital information they contain to affected stakeholders. Our experience in attempting to use the current DIDP is that it fails to provide an adequate response to reasonable information requests in a timely manner. That is because  the broad exceptions contained in it, combined with the excessive interpretative discretion allocated to ICANN staff, facilitates the withholding of important information to requesting parties simply because its disclosure might embarrass ICANN or raise further questions about its decisions and actions.

We therefore enthusiastically support the great majority of the recommendations made with the aim of converting the DIDP into a far more robust and useful procedure.

The Draft recommendations also propose useful improvements in the areas of documenting and reporting on ICANN’s interactions with all governments; transparency of Board deliberations; and enhanced whistleblower protections for ICANN employees.

Now that the comment period is concluded, we hope the subgroup will quickly resume its activities, fully consider all comments, and deliver a final set of recommendations as quickly as possible. These important transparency enhancements should be adopted and implemented at the earliest feasible time. Then the next time we contemplate filing a DIDP request we can be confident of actually receiving the requested data, with denial a narrow exception rather than a general rule.

You can read the full text of our letter here.

ICA has long been on record that it was an inappropriate usurpation of the GNSO’s policymaking role for ICANN Global Domain Division (GDD) staff to be urging legacy gTLD registry operators to adopt Uniform Rapid Suspension (URS) in the course of renewal negotiations for their registry agreements (RAs). That’s because the URS was adopted as an “implementation detail” for new gTLDs, and an ongoing Policy Development Process (PDP) Working Group (WG) is obligated by its Charter to recommend whether the URS and other new gTLDs should become Consensus Policy applicable to legacy gTLDs. In other words, URS at legacy gTLDs is a policy issue for which GDD should not be pursuing its own agenda. We have been joined in that position by both the Business Constituency (BC) and the Non-Commercial Stakeholder Group (NCSG), and all of us previously filed Reconsideration Requests on this matter that were rejected by the ICANN Board.

Recently, in separate conversations with senior ICANN executives, both I and a member of the NCSG were encouraged to use the new complaints procedure that ICANN will shortly be establishing at the initiative of CEO Goran Marby. We were urged to pursue it for the specific purpose of reexamining the previous GDD actions that resulted in URS via contract at .Pro, .Cat,, .Travel, .XXX — and potentially .Mobi (final action pending).. When I inquired how the new complaint process would operate and what relief might be available I was told those details were still being worked out.

Frankly, because the Complaints Officer will report to the General Counsel, who has a fiduciary duty to protect the interests of corporate ICANN, there is some natural skepticism about the final disposition of any initial finding by the Complaints Officer that could create legal liability or financial liability for ICANN. But given assurances by those ICANN executives that this new process would be relevant and responsive to those prior URS complaints, we were willing to wait and see who was appointed as the new Complaints Officer and how the process would work. We presumed that the hire for this new post would be an ICANN outsider, in order to eliminate any prior relationships or internal culture acclimatization that might create a perception or reality of bias; and that the individual would have a strong background in handling corporate accountability and effectively resolving complaints arising from within and outside an organization.

That announcement was made today –

The Internet Corporation for Assigned Names and Numbers (ICANN) today announced that Krista Papac, Director of Registry Services and Engagement for ICANN’s Global Domains Division, has been named as ICANN’s Complaints Officer.

We have serious concerns about this choice — and they have nothing to do with Ms. Papac, for whom we have the highest personal and professional regard.

But how can any individual who has worked for years within ICANN’s GDD be expected to cast prior experience and relationships aside to thoroughly and dispassionately investigate a complaint brought against GDD actions generally, or those of a specific member of the GDD staff?

More specifically, in regard to ICA’s longstanding complaint about imposition of URS through the RA renewal process, Ms. Papac was the principal GDD staff contact for all five of the RAs which we have objected to. So how can she be expected to objectively deal with a complaint about ICANN actions for which she had primary responsibility? In effect, we’d be asking her to investigate her own official actions.

 Again, ICA is awaiting full information about the new complaints process and the available relief it may afford before deciding whether to test it. But given Ms. Papac’s primary responsibility for the very official actions we’d be complaining about, it seems like we would be compelled to ask her to recuse herself from handling the complaint. Whether she would, and who ICANN might then select to handle the complaint, are unanswered questions to be resolved down the road.

Regardless of the answers, today’s development reiterates the need for the Work Stream II Accountability process to recommend modifications that significantly enhance the powers of an independent ICANN Ombudsman reporting directly to the Board.

It seemed clear to us that ICANN should have sought a disinterested person with a strong and demonstrated background in effective corporate responsibility to handle this important new post. That it instead selected an ICANN insider seems like a major unforced error. And that’s our complaint of the day.

Executive Summary:

• The Copyright UDRP proposal unveiled two weeks ago in the Domain Name Association’s Healthy Domains Initiative has been placed on indefinite hold and is unlikely to be revived as a DNA initiative. Public Interest Registry announced on February 23rd that it was pausing its development of the plan and will not revive it absent further notice. One day later DNA stated that it was withdrawing the copyright portion of HDI and would only revisit it after any ICANN contracted party chose to develop and implement a similar plan on its own.
• ICA played a central role in achieving this implementation moratorium. First, ICA issued two public statements immediately after the DNA’s announcement alerting the Internet community to our strong concerns about the substance and process of a judicial process alternative developed outside of ICANN’s multistakeholder process, especially given its free speech implications and proposed domain transfer remedy. ICA Counsel Philip Corwin then worked with like-minded members of ICANN’s Non-Contracted Party House, as well as with Internet Society members around the globe, to develop a letter to PIR requesting that it halt implementation and engage in dialogue with the broad Internet community before making any final decision on whether and in what form to implement the proposed DRP. That letter is now also on hold given the PIR and DNA announcements.
• ICA believes that the proper forum for vetting any proposed DRP for copyright infringement is ICANN’s transparent and inclusive multistakeholder policy development process, and that the threshold question to be addressed must be why existing contracted party enforcement of relevant terms of service, combined with use of national copyright laws, is inadequate to address domains used for pervasive copyright infringement. If ICANN undertakes such an inquiry ICA will participate in good faith and with the objective of ensuring the health of the domain name system and the domain name industry through balanced, community-based policies that preserve registrants’ due process rights.

A detailed report on these developments follows.

*****

Two weeks ago the Domain Name Association (DNA) announced the details of its Healthy Domains Initiative (HDI) that included “the creation of a voluntary third party mechanism, similar to the Uniform Dispute Resolution Policy, for handling trademark violations, which would address illegal infringement of copyrighted material through the use of domain names”. An HDI background paper referred to this component as the “PIR proposal”, denoting its origin at the Public Interest Registry and PIR’s intent to be the first registry to implement this new DRP at .Org and the other gTLDs for which it is registry operator.

Both PIR and DNA have now put the Copyright UDRP on indefinite hold. As outlined below, ICA played a leading role in securing that result.

On February 23^rd PIR posted the following notice on its website:

Over the past year, Public Interest Registry has been developing a highly focused policy that addresses systemic, large scale copyright infringement – the “Systemic Copyright Infringement Alternative Dispute Resolution Policy” or SCDRP.

Given certain concerns that have been recently raised in the public domain, Public Interest Registry is pausing its SCDRP development process to reflect on those concerns and consider forward steps. We will hold any further development of the SCDRP until further notice. (Emphasis added)

On February 24^th the other shoe dropped with a DNA announcement that included the following:

On February 8, the DNA publicly announced the first output of its Healthy Domains Initiative: A set of 37 total “healthy practices” recommendations in four key areas… While each set of recommendations is important, a great deal of attention was focused on the copyright alternative dispute resolution (ADR) proposal—some have characterized it as a needless concession to ill-intentioned corporate interests, represents “shadow regulation” or is a slippery slope toward greater third party control of content on the Internet.

While the ADR of course is none of these, the DNA’s concern is that worries over these seven recommendations have overshadowed the value of the remaining 30. While addressing this and other illegalities is a priority for HDI, we heard and listened to various feedback, and have elected to take additional time to consider the details of the ADR recommendations… the DNA will take keen interest in any registrar’s or registry’s design and implementation of a copyright ADR, and will monitor its implementation and efficacy before refining its recommendations further. (Emphasis added)

While the PRI and DNA statements both leave open the possibility that they might revive development of the Copyright UDRP at some future time, our understanding is that there are no plans to do so. Further, notwithstanding the last sentence of the DNA’s statement, we believe that it is highly unlikely that any individual registrar or registry would advance such a DRP on its own without the protective endorsement of an umbrella trade association, or a multistakeholder organization like ICANN. Ever since the U.S. Congress abandoned the Stop Online Privacy Act (SOPA) in January 2012 after millions of protesting calls and emails flooded Capitol Hill, it has been clear that copyright enforcement is the third rail of Internet policy.

ICA played a leading role in voicing concern and raising questions about the Copyright UDRP.

The day after it was first announced, we blogged the following:

It’s that last proposal that is of greatest concern to ICA and its members, since it would establish proprietary dispute resolution mechanisms that could result in domain extinguishment or transfer. Further, it could set a precedent which trademark owners might cite in seeking privatized “best practices” trademark dispute resolution policies that go beyond whatever community-based consensus policies emerge from ICANN’s ongoing working group reviewing all rights protections mechanisms (RPMs) at all gTLDs. Therefore, ICA plans to take a leading role in analyzing and monitoring the details and implementation of the new “Copyright UDRP” and in exploring means to assure that ICANN-mandated RPMs for trademark owners do not simply become a floor from which they can seek to pressure registries to adopt far more onerous and unbalanced private RPMs… While it’s true that registries have always been able to adopt protective measures that go beyond ICANN requirements – witness the protected marks blocking lists being offered by some new gTLD portfolio owners to TM rights holders as an alternative to sunrise registrations – we believe it is now time to examine and limit that ability in regard to DRPs that can result in the transfer of valuable domains. ICA intends to raise that matter within the ICANN community and to seek allies for the proposition that all parties benefit from the adoption of uniform, consensus-based RPM policies as opposed to a disjointed system of varying RPMs designed to benefit just one side of the debate.

The following day we further explained our concerns:

This proposal would establish a new unregulated private legal dispute system for domain names involving claims of copyright infringement outside of any ICANN-mandated legal rights protection mechanisms (RPMs)… the .Org registry operator, Public Interest Registry (PIR), has already announced its intent to soon launch its own such “Copyright ADRP” that would award domain names to prevailing copyright claimants.

This is a deeply troubling development as ICANN has up to now been the sole source of all domain name related RPMs that can result in domain transfer or suspension at gTLDs.  The ICA is concerned that such a development outside of the ICANN multi-stakeholder, community-based consensus model, without public consultation, effectively circumvents ICANN’s established role and obligations, and may lead to private companies electing to force their own private legal regimes on Internet users and domain name registrants.

ICA Counsel Philip Corwin continued our organization’s involvement in the evolving and heated debate through participation in the Internet Policy email list maintained by PIR’s parent organization, the Internet Society (ISOC).

On February 17^th he posted the following to that list:

This past week I have been attending the Intersessional meeting of ICANN’s Non-Contracted Party House (NCPH) in Reykjavik, Iceland in my capacity as one of the GNSO Councilors representing the Business Constituency (BC – and noting that the BC has not taken any position on any component of HDI and that this communication is being undertaken in my ICA role and not on behalf of the BC). During the meeting I engaged in conversations with many other members of the NCPH who share substantial concerns regarding the Copyright ADRP and its imminent implementation by PIR.

Those concerned NCPH delegates have asked me to draft a letter that can be signed by individuals and organizations requesting that PIR and ISOC undertake an open and transparent dialogue with the broad Internet community before making any final decision on whether and in what form to implement the Copyright ADRP. We share the common belief that PIR, as the registry operator affiliated with ISOC, has a particular responsibility to engage in such a dialogue before granting ISOC’s implicit blessing to an unprecedented dispute resolution procedure concerning copyright disputes. That is particularly true given that the DNA developed the HDI components without undertaking the broad outreach and discussion beyond its membership that it had initially indicated would be forthcoming.

On February 23^rd, just after the PIR notice of intent to halt implementation was posted to the ISOC email list by Sally Wentworth, ISOC’s Vice President for Global Policy Development, Corwin posted this response:

Thank you for alerting us to the posting of this important statement by PIR. I welcome the announcement that PIR “is pausing its SCDRP development process to reflect on those concerns [raised in the public domain]” and “will hold any further development of the SCDRP until further notice”.

Last Friday I posted an email to this list stating in part that “concerned NCPH [ICANN Non-Contracted Party House] delegates have asked me to draft a letter that can be signed by individuals and organizations requesting that PIR and ISOC undertake an open and transparent dialogue with the broad Internet community before making any final decision on whether and in what form to implement the Copyright ADRP”. The threshold purpose of this letter was to convince PIR to halt any rush toward SCDRP implementation and to use that time out to consider the many concerns that have already been raised, as well as engage in a more expansive dialogue that included detailed discussion of the substance of the underlying and so far unrevealed draft policy and rules for the SCDRP.

Now that PIR has voluntarily declared a pause to any further development of the SCDRP I no longer see any immediate need to send a letter requesting such action. I do hope that PIR’s “forward steps” will include a broader engagement and dialogue with concerned parties. I thank all those parties who privately noticed me of their interest in signing such a letter, and I look forward to working with them and all other concerned parties as the situation develops.

While the draft letter was just about to be circulated for review at the time of the PIR announcement, expressions of interest in signing it had been received from multiple members of the NCPH as well as from individual and organizations (including national ISOC chapters) around the globe.

The Copyright UDRP initiative clearly elicited deep concern from multiple parties with varied Internet policy interests, and ICA commends PIR and DNA for recognizing the validity of those concerns and halting implementation and further development of the proposal.

As noted in ICA’s initial statements on the copyright UDRP, we believe that ICANN’s transparent and inclusive multistakeholder policy development process (PDP) is the most appropriate venue for consideration of any “private legal dispute system for domain names involving claims of copyright infringement”. The opening step to initiating such a PDP would be a request for ICANN staff to develop an Issues Paper outlining the scope of the underlying problem and the available mechanisms for ICANN’s contracted parties to address domains implicated in pervasive copyright infringement, as well as the legal and operational issues that would arise in the development of a new copyright DRP. It would be particularly important for such a document to examine whether existing means, such as registry/registrar enforcement of standard Terms of Service (TOS) that prohibit the use of domains for such unlawful purposes as IP infringement, as well as use of national notice-and-takedown laws such as the U.S. Digital Millennium Copyright Act (DMCA), are insufficient to address the problem – which should be a threshold determination before any further development of a Copyright UDRP is undertaken.

If ICANN undertakes such an inquiry ICA will participate in good faith and with the objective of ensuring the health of the domain name system (DNS) and the domain name industry through balanced and community-based policies that effectively address IP infringement while maintaining procedural and substantive due process for domain registrants.          

On Wednesday, our fellow trade association, the Domain Name Association (DNA), announced the rollout of its “Healthy Domains Initiative” (HDI).  The ICA joins the DNA in seeking solutions for stopping online abuse.  However, the ICA is particularly concerned  about its proposed remedy to combat online copyright infringement.

The HDI proposes to establish a “Copyright ADRP” with the power to order the transfer of domain names on the basis of claims of copyright infringement.   This proposal would establish a new unregulated private legal dispute system for domain names involving claims of copyright infringement outside of any ICANN-mandated legal rights protection mechanisms (RPMs).  It would also likely slam the door shut on the growing and legitimate practice of licensing and leasing domain names with no trademark issues.  Nevertheless, the .Org registry operator, Public Interest Registry (PIR), has already announced its intent to soon launch its own such “Copyright ADRP” that would award domain names to prevailing copyright claimants.

This is a deeply troubling development as ICANN has up to now been the sole source of all  domain name related RPMs that can result in domain transfer or suspension at gTLDs.  The ICA is concerned that such a development outside of the ICANN multi-stakeholder, community-based consensus model, without public consultation, effectively circumvents ICANN’s established role and obligations, and may lead to private companies electing to force their own private legal regimes on Internet users and domain name registrants.

Unilateral actions, such as those proposed by the DNA and  PIR, should not be undertaken on an ad hoc, commercial basis, outside of the ICANN framework.  ICANN must not abrogate its primary responsibility to provide the policy framework for its contracted parties.

The ICA will be closely examining the HDI and PIR proposals, and will be actively engaged in opposing any unilateral actions which purport to impose private legal systems upon public resources outside of the ICANN community-based framework.

For more information visit https://www.internetcommerce.org/dna-unveils-hdi-with-copyright-udrp/

On February 1^st the ICA filed its comment letter  with ICANN opposing the inclusion of the URS in the .Mobi renewal registry agreement. Once again we were joined in this position by ICANN’s Business Constituency (BC), and opposed by the Intellectual Property Constituency and the International Trademark Association.

We have seen this movie before. We took the same position on these Global Domain Division (GDD) shenanigans for the 2015 renewals of the legacy .Cat, .Pro, and .Travel domains. When ICANN staff ignored our arguments and went ahead with making policy decisions through closed door contract negotiations we even filed a formal Request for Reconsideration with the Board, as did the BC and the Non-Commercial Users Constituency. We lost on that too.

Those 2015 negotiations took place before the GNSO Council chartered the working group to review all Rights Protection Mechanisms (RPMs) in all gTLDs. As we pointed out in the .Mobi letter:

The 2016 launch of the PDP Review of All Rights Protection Mechanisms in All gTLDs, which is tasked with recommending whether new gTLD RPMs should become Consensus Policy for legacy gTLDs under its GNSO Council-approved Charter, makes it particularly inappropriate for GDD staff to continue seeking that de facto policy result in non-transparent, bilateral RA negotiations that contravene the policymaking process set forth in the Bylaws.

The .Mobi RA, like the recent revision of the .XXX RA, also provides the registry with a substantial reduction in its registry fees, resulting in the unseemly appearance that the registry was bribed to adopt the URS. But as ICANN is seemingly incapable of embarrassment, the ICANN Board just approved that .XXX RA on February 3^rd, giving its standard boilerplate rationalization that “inclusion of the Uniform Rapid Suspension was agreed to through bilateral negotiations between the applicable Registry Operator and ICANN”. Nobody was in that negotiating room representing domain registrants when ICM Registry obtained nearly $300,000 per year in financial benefits in exchange for its “voluntary” adoption of the URS at .XXX.

So why does ICA keep beating its head against the ICANN wall in decrying this seamy GDD practice? Because it’s the right thing to do on behalf of our members, and because ICANN needs to be called out every time GDD staff improperly use their superior leverage to push policy decisions through contract negotiations and usurp the role of the community.

And also because the .Net RA is up for renewal in a few months, and whether or not the URS should be available at the number two gTLD is a matter of central import for its 15.2 million domain registrants and should not be decided in a back room. As we gear up to review that proposed .Net RA, we’ll continue to engage in dialogue with other members of the ICANN community who share our concerns, and keep exploring whether there are alternative, more effective means to return policy decisions to that community. We will keep fighting the good fight so long as ICANN staff keeps overstepping their proper bounds.

Yesterday, in an article published at CircleID.com, our fellow trade group the Domain Name Association (DNA) announced the rollout of its Healthy Domains Initiative (HDI). DNA was established concurrent with the launch of the new gTLD program, and primarily represents new gTLD registries as well as some registrars, but not registrants (including domain investors and developers). ICA and DNA share a number of members and we generally view our work as complementary.

Additional information about HDI can be found at the DNA’s website, where one can also download the full 21-page HDI background paper. The four areas addressed by HDI are:

• online security abuse;
• child abuse mitigation;
• complaint handling from illegal online pharmacies; and
• online copyright infringement.

It’s that last proposal that is of greatest concern to ICA and its members, since it would establish proprietary dispute resolution mechanisms that could result in domain extinguishment or transfer. Further, it could set a precedent which trademark owners might cite in seeking privatized “best practices” trademark dispute resolution policies that go beyond whatever community-based consensus policies emerge from ICANN’s ongoing working group reviewing all rights protections mechanisms (RPMs) at all gTLDs. Therefore, ICA plans to take a leading role in analyzing and monitoring the details and implementation of the new “Copyright UDRP” and in exploring means to assure that ICANN-mandated RPMs for trademark owners do not simply become a floor from which they can seek to pressure registries to adopt far more onerous and unbalanced private RPMs.

Of course, no one wants “unhealthy domains”, and all four of the targeted concerns are all worthy areas for exploring more effective responses. That said, the devil is in the details, and each of the separate components will no doubt be analyzed for their potential effectiveness as well as consistency with prevailing law and adequate due process for domain registrants.

In its background paper, DNA relates the genesis of the HDI initiative:

During the ICANN meeting in Marrakech in March 2016, parties interested in HDI met to further review and discuss these ideas. It was agreed in that meeting that the next best output for the HDI effort was to put forth a set of operational principles to which contracted parties could reasonably adhere. HDI leaders thus focused on such a document as the first deliverable in the HDI effort.

Now at that 2016 Marrakech meeting ICA and many other parties responded affirmatively to DNA’s request for input on the HDI initiative from those outside its membership. Unfortunately, once we signed on there was no real follow-up by DNA; ICA made several inquiries and was told that we’d be hearing more soon, but we never did. It’s unfortunate that DNA chose to develop HDI without the benefit of additional viewpoints, and it was apparent from e-mail exchanges yesterday on the HDI list that many of those who offered to provide outside input were disappointed and chagrinned that, after responding affirmatively, they were never brought into the planning loop and did not even receive an advance heads up of the HDI announcement.

The bottom line is that ICA had no advance knowledge of the details of HDI and no opportunity to provide substantive input. So our fingerprints are nowhere on it.

The HDI background paper does state that for each of the four target areas “1-2 HDI committee volunteers… will direct subteams in developing implementation plans”, but it’s not clear whether those outside of DNA will be solicited in regard to such implementation.

Turning to the initiative that is likely of greatest interest and concern to ICA members, the “Voluntary third party handling of copyright infringement cases (PIR proposal)” aims to “to provide a voluntary mechanism to help mitigate copyright infringement in the DNS, by a method similar to those employed by trademark owners to protect their interests”. However, it is not clear that the UDRP is a suitable model for copyright disputes, which tend to be far more complex than trademark infringement allegations and where free speech and fair use are often at issue.

An adverse ruling against the domain registrant would result in “cancellation of registration or transfer to Complainant”. A fuller explanation in the background paper posits that the aim of this “Copyright Alternative Dispute Resolution Policy (“Copyright ADRP”) is to provide a legally effective and efficient mechanism mitigating pervasive instances of copyright infringement in the DNS, while ensuring that Registrants’ due process rights are observed”.

The potential for domain loss from a Copyright ADRP decision could well have a chilling effect on the domain leasing and licensing business, as the owner of a valuable domain with no domain name trademark issues could be reluctant to risk its loss if a lessee/licensee used it to distribute content later found to infringe copyright.

As noted above, this copyright UDRP is dubbed the “PIR Proposal”, and according to a related news article:

Public Interest Registry, the company behind .org, tells DI that it hopes to adopt the UDRP-style anti-piracy measure by the end of the first quarter…PIR general counsel Liz Finberg, the main architect of the policy, said that these details are currently being finalized in coordination with UDRP arbitration firm Forum (formerly the National Arbitration Forum). The standard, she said, will be “clear and convincing evidence” of “pervasive and systemic copyright infringement”.

It remains to be seen whether Internet rights groups such as the Electronic Frontier Foundation will support this Copyright ADRP or blast it as a new variation on the private adjudication approach proposed in the PIPA/SOPA legislation that went down in flames after millions of calls and emails bombarded Capitol Hill. Interestingly, PIR was founded by the Internet Society (ISOC) and ISOC appoints PIR’s Board members. In December 2011 ISOC joined the broad and vocal opposition to the Stop Online Piracy Act (SOPA), stating “While the Internet Society agrees that combating illicit online activity is an important public policy objective, these critical issues must be addressed in ways that do not undermine the viability of the Internet as a platform for innovation across all industries by compromising its global architecture”.

While ISOC was primarily concerned with the negative impact of ISP’s DNS filtering upon Internet security and stability it also stated:

DNS filtering and blocking raises human rights and freedom of expression concerns, and often curtails international principles of rule of law and due process.  Some countries have used DNS filtering and blocking as a way to restrict access to the global Internet and to curb free expression.

The United States has been a strong proponent of online Internet freedoms and therefore has an important responsibility to balance local responsibilities and global impact, especially with respect to Internet policy. Given this commitment to global Internet freedom, it would be harmful to the global Internet if the United States were to implement such an approach.

It seems to us that those very same concerns about human rights, freedom of expression, and due process may be raised by an ADRP system that results in domain cancelation or transfer to copyright owner complainants, especially given the content industry’s long history of aggressive, pushing-the-envelope use of all available mechanisms to address alleged infringement. So we’ll be watching to see whether PIR’s proposed implementation of ADRP stirs up concerns among ISOC members similar to those inspired by SOPA.

Finally, regardless of its final details or whether it is implemented, ICA is quite concerned that any proposal for privatized DRPs may be cited by trademark owners to pressure registries to adopt “best practices” that go beyond official ICANN RPM policy. Right now more than one hundred members of the ICANN community are engaged in a working group (WG) that is reviewing all RPMs at all gTLDs, including the URS and UDRP.

What if the final consensus decision of that WG is that the URS remedy should remain domain suspension and not transfer, or that the UDRP standard of “bad faith registration and use” should remain as is? Are TM owners then free to develop their own “best practices” that include domain transfer via URS, or a bad faith registration or use standard? What’s the point of going through a multi-year exercise if those dissatisfied with the result can seek stiffer private policies? Just how many bites at the apple should trademark holders get, especially when such private initiatives just build upon ICANN’s existing consensus-based polices and therefore almost always end with a lessened burden of proof and harsher penalties, ratcheting ever forward on behalf of trademark owners and against domain registrants?

While it’s true that registries have always been able to adopt protective measures that go beyond ICANN requirements – witness the protected marks blocking lists being offered by some new gTLD portfolio owners to TM rights holders as an alternative to sunrise registrations – we believe it is now time to examine and limit that ability in regard to DRPs that can result in the transfer of valuable domains. ICA intends to raise that matter within the ICANN community and to seek allies for the proposition that all parties benefit from the adoption of uniform, consensus-based RPM policies as opposed to a disjointed system of varying RPMs designed to benefit just one side of the debate.

On Monday, January 23, 2017, at noon, the ICA will be holding a special session at NamesCon, to debate and select the most shocking UDRP decision of 2016. The three cases up for debate are Sihi.com, NutrihealthSystems.com and GreenTrust.com.  Summaries of the cases are set out below.  After the cases are presented and debated, the audience at the session will select the case that deserves the title of “Most Shocking”.

Namescon Case Summaries Jan 17