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.
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 23rd 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 24th 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 17th 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 23rd, 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 1st 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 3rd, 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.
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”.
As we had noted last month, the .US ccTLD, which has been operated by Neustar under an NTIA contract since 2001, had solicited comment on proposals to release one and two character domains and to begin offering a privacy service to .US registrants – as well as to re-designate certain existing domains as “premium”.
After some spirited internal discussion by ICA members, we filed a comment letter expressing our consensus view on these proposals.
In regard to the proposed release of one and two character domains, ICA took a position of non-opposition, provided that two key conditions were met to assure that the plan sets a positive precedent:
Turning to the proposed offering of a privacy service, we agreed that the current prohibition of such services was a key issue suppressing registration in the .US TLD, and that it also likely led to some submission of inaccurate WHOIS data. We therefore supported the proposal, including its availability to commercial entities, as one that would address these shortcomings while meeting the goal of providing registrants with the protection they demand and also addressing the legitimate concerns of law enforcement.
Finally, there was one part of the premium name proposal that we opposed, that being the reclassification of approximately 100,000 currently authorized .US domains as “premium” under a tiered pricing approach. While noting the details were less objectionable than domain reclassification programs we have seen proposed in the past, we nonetheless believe that implementation of such a plan by a “legacy TLD” would set a worrisome precedent. We also stated our belief that the prices of existing and authorized domains, especially those of legacy TLDs, should be set in the robust, competitive and efficient secondary domain marketplace and not unilaterally imposed by registry operators.
Neustar and its Stakeholder Council will now review all comments received and then decide on next steps. That hopefully will lead to submission of the one and two character domain release program, and the proposed privacy service, to NTIA for review and approval.
Our complete comment letter follows:
Internet Commerce Association
1155 F Street, NW
January 16, 2017
By Email to email@example.com
Re: Proposed usTLD Premium Domain Name Plan and Privacy Service Plan
Dear Neustar and members of the usTLD Stakeholder Council:
I am writing on behalf of the members of the Internet Commerce Association (ICA). ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.
We note that Philip Corwin of Virtualaw LLC serves as a member of the usTLD Stakeholder Council. Mr. Corwin also serves as Counsel to the ICA, and we appreciate the fact that through his service the views of domain investors and developers are given voice within the Council.
This letter addresses the proposed usTLD Premium Domain Name Plan as well as the Privacy Service Plan, both of which were published for public comment on December 15, 2016. ICA members have been fully briefed by our Counsel in order to gain a full understanding of the proposed plans that are the focus of this comment letter, and have engaged in vigorous and robust discussion of them. This comment letter represents the consensus views of our membership on these matters.
Response to Stakeholder Council Questions
Response to questions regarding the Premium Domain Name Plan
The Stakeholder Council has posed three questions regarding the Premium Domain Name Plan. Our short answers are below, followed by narrative explanations of our position in the General Discussion section.
Response to questions regarding the Privacy Service Plan
The Stakeholder Council has posed three questions regarding the Privacy Service Plan. Our short answers are below, followed by narrative explanations of our position in the General Discussion section.
Release of 1 and 2 Character Domains
ICA does not oppose the release of presently reserved 1 and 2 character .US domains pursuant to the proposed plan as a means to generate press attention to the .US ccTLD, as well as to generate revenues that can fund public relations effort with the same goal. As proposed, this program should be of benefit to both current .US registrants and the registry operator if it drives greater public awareness of the .US namespace, strengthens the secondary market value of .US domains, and leads to an overall increase in .US domain registrations. While .US may never gain the market share of other prominent ccTLDs in their home markets, we nonetheless believe that there is considerable upside potential in overall .US registration totals.
ICA endorses the proposal to hold an open 30-day solicitation period prior to the domain names being available on a first-come, first-served basis that would not include an exclusive access period specifically for registered marks, but would include messaging that would highlight the benefit for any company or companies with 1- or 2-character registered marks to acquire these names prior to the general 30-day first-come, first-serve launch; with this solicitation period open on an equal basis to both trademark holders and the public. Under the plan, any domain name that garners two or more interested purchasers goes to a closed auction and any domain name with a single applicant is registered at the listed price, without any additional application fees or increased registration fees during the Open Solicitation period.
We agree with Neustar’s conclusion that there is no clear current standard or common practice for the release of such short domain names by a ccTLD, that a traditional Sunrise procedure would require significant additional resources, and that the names that could correspond to registered marks would generally be acronyms that could legitimately apply to a wide range of entities or individuals.
The equal access proposed to be provided to trademark owners and members of the general public, including domain investors/developers, is a key criterion for ICA’s members. Trademark owners will of course be protected against any infringing misuse of the released domains by the usTLD Dispute
Resolution Policy, and the usTLD Rapid
Suspension Dispute Policy – both of which are somewhat more stringent that corresponding ICANN rights protection mechanisms (RPM) policies – and by applicable trademark law.
ICA’s non-opposition to the release on 1 and 2 character .US domains is conditioned upon two requirements to assure that the plan sets a positive precedent:
In regard to that final condition, we note that even now, while Neustar is a public company, a review of Neustar’s most recent 10-Q and 10-K filings with the SEC yields no broken out data concerning the revenue generated through acting as the .US registry operator. Now that Neustar has agreed to be acquired by Golden Gate Capital and is expected to become a private entity by the third quarter of 2017, even that level of financial transparency will soon be gone. Therefore, only NTIA will likely be in a position to have knowledge of the total revenues generated by the sale of 1 and 2 character .US domains, as well as the level of expenditures on .US public relations efforts. Based upon the market valuation of short domain names at major registries, we would anticipate that those revenues will aggregate in at least the millions of dollars. We further note that part 2 the 2014 .US registry agreement entered into by Neustar contemplates that, in the event of any future expansion of the usTLD space, the fees levied for services by Neustar as Contractor should consider “cost plus a fair and reasonable profit”, but not a windfall profit.
Dedication of the realized revenues to such PR efforts would be consistent with Neustar’s statement that a major objective of the release is to “Generate revenue from the sale of .US Premium Domains that will be directly used to fund future marketing, promotion and community-building campaigns to build and grow the .US namespace”. While we trust that Neustar will undertake such efforts if the plan is approved, only NTIA will be in a position to verify that these campaigns are undertaken in a manner that substantially utilizes all of the revenues within a reasonable time period following their generation.
Premium General Availability “Tiered Pricing” Program
ICA is strongly opposed to this portion of the proposal, which would reclassify approximately 100,000 currently authorized .US domains as “premium” within the following categories:
We take this position notwithstanding the fact that, now that Neustar has identified the categories of domains it would reclassify as premium, sophisticated domain investors could readily seek to acquire both presently registered as well as unregistered .US domains within these categories in anticipation of implementation of the plan and a potential increase in secondary market value. We also recognize that the proposed high/low pricing model is less objectionable than domain reclassification programs we have seen proposed in the past, given that it would not affect current registrants or their renewal or transfer costs; that currently registered domain names identified as premium will incur a premium fee only if they expire, go through the redemption process and become available for re-registration again by new or different customers; and that the premium pricing would typically be a one-time event with annual renewal fees being the same as for non-premium domains.
Nonetheless, we believe that implementation of such a plan by a “legacy TLD” would set a worrisome precedent. Other registry operators might well cite approval of this portion of the .US proposal as basis for similar plans by legacy gTLDs, including more radical versions featuring tiered pricing of both acquisitions and renewals.
While new gTLDs established via ICANN’s recently implemented program have complete latitude to adopt any premium pricing model they wish to, these gTLDs are entrepreneurial efforts risking private capital; and domain registrants who choose to acquire their domains do so with full knowledge of the present registry rules, and that they can change at any time. .US, by contrast, is a long-established ccTLD – indeed, it is the Internet’s first ccTLD, created in 1985 and originally administered by Jon Postel; and has been administered under NTIA contract by Neustar since 2001. Reclassification of .US domains should not be permitted 32 years after the registry’s creation and 16 years after Neustar was selected as registry operator. That is particularly true when the registry is a governmental resource that should broadly benefit the general public.
As a general proposition, we believe that the prices of existing and authorized domains, especially those of legacy TLDs, should be set in the robust, competitive and efficient secondary domain marketplace and not unilaterally imposed by registry operators. We have also received informed feedback that even the proposed high/low program could present substantial administrative difficulties for registrars.
Further, the proposal would appear to clash with certain provisions of part 1 of the 2014 .US registry agreement between Neustar and NTIA. These include requirements that registry fees be “fair and reasonable”; as well as conflict of interest provisions that require Neustar to “take measures to avoid any activity or situation that could compromise, or give the appearance of compromising, the impartial and objective performance of the Contract”, with the resulting conflicts policy required to address “possible direct or indirect financial gain from Contractor’s policy decisions”.
We also substantially oppose the breadth of the related proposal that .US Premium Names may also be allocated on a non-cash or discount-cash basis, to support organizations or activities that will help to spread awareness, growth and use of the .US domain through a .US Premium Development Program open to big brands, individuals, commercial or non-commercial businesses and government entities. While .US is charged with advancing certain public purposes as a ccTLD, any domain discounting program should be narrowly restricted to charitable non-profit and governmental entities, with all others required to pay market prices and standard annual fees.
Privacy Service Plan
ICA agrees with the view of the .US Stakeholder Council that identifies “the lack of privacy and proxy services as a key issue suppressing registration in the .US TLD”. The lack of privacy services is a strong deterrent to potential registrants with legitimate privacy objectives, including the avoidance of spam and harassment.
We also agree that “In the absence of privacy services, risk-averse registrants may choose to attempt to submit false or inaccurate information into WHOIS’ and that with “the implementation of privacy services, the WHOIS database may be more accurate and allow law enforcement to obtain the information it needs”. And we concur that the availability or privacy protections will likely boost .US registrations by “international corporations, global media publications, global nonprofit organizations, churches, sports teams, families, small businesses, blogs, home businesses, retail stores, social media messaging sites, and gaming sites – the demographic of registrants who are most likely to be affected by the existing prohibition on privacy and proxy services”.
Therefore, we support a change of registry policy in this regard, and believe that the privacy plan meets the goal of providing “registrants with the protection they demand ensuring to also address the concerns of law enforcement”.
The positive aspects of the proposed registry level plan are that it will allow the registry operator to maintain firm control of the centralized authoritative database of WHOIS information; be built into the registry software, compliant with all .US policy and security standards; and enable Neustar to provide one-stop access to law enforcement agencies, rights holders, and others with lawful requests in near real time. This approach will also cause the least disruption to registrar business models.
We also agree that such privacy service should be available to commercial entities. This is consistent with recently adopted, carefully developed ICANN policy in this area; ICA’s Counsel participated in development of the policy and is now part of its implementation group. Barring such a service for commercial entities would negate much of its potential benefit for no justifiable reason, given that legitimate requests for registrant data will be honored. Such an unnecessary carve out would also raise administrative burdens and associated costs.
By remaining the privacy provider, Neustar will be best positioned to both ensure registrant privacy while assuring that the authoritative contact information can be accessed by law enforcement and other authorized parties with a lawful request.
We appreciate the opportunity to provide these comments on the proposed .US Premium Domain Name and Privacy Service Plans. We hope they are helpful to the further consideration of this matter by Neustar and the usTLD Stakeholder Council.
President and Member of the Board, Internet Commerce Association
Once again, staff of ICANN’s Global Domains Division (GDD) has used a legacy gTLD’s contract renewal process to impose Uniform Rapid Suspension (URS) on that gTLD — despite the fact that the URS is not an ICANN consensus policy applicable to legacy gTLDs.
And, once again, the registry operator acquiescing to URS is reaping significant financial benefits as a reward for its acquiescence.
The leaders of GDD are well aware that the URS is the subject of an ongoing policy development process (PDP) responsible for determining its efficacy and whether it has been properly administered and – most important – recommending whether or not it should become a Consensus Policy required of all legacy gTLDs, and what appropriate legal and transition arrangements should accompany that potential decision. Yet, as conceded by GDD head Akram Atallah during the Hyderabad Public Forum, their negotiating position for every legacy gTLD RA renewal negotiation is this: “So basically the negotiations are – the registries come and ask for something and we tell them please adopt the new gTLD contract”. In other words, to get the RA changes you want or need you must accept the URS.
On December 23, 2016 ICANN published for public comment the “Proposed Renewal of .MOBI Sponsored Registry Agreement”, with a February 1st comment filing deadline. The notice contains GDD’s standard flimsy and non-convincing rationale that, “The renewal proposal is a result of bilateral discussions between ICANN and Afilias Technologies Limited (the Registry Operator for the .MOBI TLD).” While the discussions were clearly between two parties and therefore bilateral, they took place behind closed doors and out of sight of the ICANN community that is supposed to make the policy decisions that impact it. Further, bilateral does not equate to balanced when the decisive power in these discussions is clearly held by GDD staff, with their ability to approve or deny requested RA modifications as well as hold out financial rewards to compliant registry operators.
The .Mobi gTLD was originally established as a “sponsored” registry to serve global users of mobile phones, but the revised registry agreement (RA) will largely shed that status and generally transition .Mobi to the standard new gTLD RA. Afilias, the registry operator, will see its annual registry fixed fee cut in half, down to $25,000 from the current level of $50,000. In addition, the approximately 690,000 .Mobi domains will become subject to the standard $0.25 per domain annual transaction fee; .Mobi domains are currently subject to a price-linked variable fee ranging from $0.15 to $0.75 per transaction.
We saw this same type of cash benefits for URS acquiescence horse trade take place recently with .XXX. ICA’s comment letter on that RA revision implored GDD to respect the ongoing PDP process, stating:
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, 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… GDD staff should demonstrate their clear commitment to ICANN’s bottom-up policymaking process by ceasing and desisting from seeking top-down imposition of new gTLD RPMs in legacy gTLD RA negotiations until the RPM Review WG has completed its work reviewing those RPMs and its final recommendations – including whether those RPMs should become Consensus Policy — have been acted upon by the GNSO Council and ICANN Board.
Clearly, GDD staff were unmoved by that entreaty and are determined to seek imposition of URS on every legacy gTLD coming up for contract renewal.
As stated in our .XXX comment letter, these closed door contract renewal negotiations are particularly odious when financial incentives are utilized, resulting in a situation where “two parties with no central role in ICANN’s policy development process are effectively permitted to collude in closed door negotiations on a decision with broad policy implications. With each legacy TLD revision in which GDD staff succeeds in imposing new gTLD provisions that are not yet ICANN Consensus Policy they create de facto consensus policy, one negotiation at a time. This is wrong and it should stop.”
As noted, this proposed RA, if approved, will affect about 690,000 registered domains at a legacy gTLD by imposing a new gTLD rights protection mechanism (RPM) that was adopted as an “implementation measure” and was not supposed to be applied to any legacy gTLD unless and until it was adopted as Consensus Policy. In retrospect it appears that the “bait” was leading the community to believe the new gTLD RPMs would only be applicable to new gTLDs and off-limits for legacy ones until a PDP changed that, and the “switch” occurred when GDD started pressing them on legacy gTLDs in RA renewal negotiations from 2015 onward.
But the real test of GDD’s illicit strategy of incremental de facto policymaking will come later this year, when the .Net RA comes up for renewal. We have no idea whether Verisign will be seeking any substantial revisions to that RA that would provide GDD staff with substantial leverage to impose URS, nor do we know whether Verisign would be amenable to that tradeoff.
But we do know that there are 15.2 million .Net domains registered at present, and that it would be unconscionable and highly controversial to impose a policy change of this magnitude on the second most populous legacy gTLD when the PDP jury is still out on whether URS should become Consensus Policy. Unlike the lesser gTLDs on which URS has been imposed by contractual fiat, .Net domains constitute longstanding platforms for business and speech dating back to ICANN’s inception, and many command substantial secondary market valuations. If URS is to come to .Net it should only be through community consensus as set out in ICANN’s Bylaws, not a backroom deal.
Further, the publication of any revised .Net RA will likely occur just prior to the time that the RPM Review PDP will be debating whether URS and the other new gTLD RPMs should become Consensus Policy. So if the revised .Net RA contains the URS that would constitute a gross interference by GDD staff in the ICANN community’s policy process, with severely prejudicial effects. Indeed, it seems likely that GDD staff is seeking to create enough “facts” to dictate the PDP’s outcome.
It is now unquestionably clear that GDD staff lacks sufficient propriety to cease and desist from making policy changes through RA negotiations notwithstanding its corrosive effect upon the perceived legitimacy and primacy of the ICANN policymaking process. The real question of the moment is whether ICANN’s Board will do the right thing and intervene by declaring a moratorium on this tawdry practice until the community members comprising the PDP working group make their own informed and unpressured decision on whether URS should become a Consensus Policy.
Will the ICANN Board members demonstrate their respect for the integrity of ICANN’s policymaking process, and the sensitivity of the unfolding situation, to understand that continued toleration of this GDD practice undermines confidence in ICANN’s commitment to bottom up, community-based consensus policy development? Or will they continue to cover for GDD staff with narrow technocratic and self-serving legalistic fictions? We shall soon find out.
It has been my honor for the past two years to have been a member of the .US TLD Stakeholder Council http://www.neustar.us/ustld-stakeholder-council and, in that capacity, to provide the perspective of domain investors and developers to the operation of the USA’s ccTLD.
On Thursday, December 15th .US issued two important requests for public comment. The first relates to the potential release of 1 and 2 character .US domains, and is particularly significant for domain investors and other potential end users. The second relates to the potential allowance of .US domain registrants to utilize privacy protection services for the first time.
The comment period for both requests closes on January 16, 2017. Anyone can file a comment, and ICA is soliciting feedback from its members as it considers filing its own.
Here is some background information provided by Neustar on the two proposals. Full PDFs containing additional information are available through the hyperlinks below—
usTLD Premium Domain Name Plan http://www.neustar.us/ustld-stakeholder-council/ustld-premium-domain-name-plan/
The usTLD Stakeholder Council (“Council”) and Neustar, Inc. (“Neustar”), the registry operator for the usTLD, is seeking public comment on the Council’s recommendation to Neustar to release one and two character domain names in connection with the usTLD Premium Domain Name (“PDN”) plan. The primary goal of the proposed PDN Plan is to increase the use and awareness of the .US brand in the consumer marketplace. Additionally, the PDN Plan provides the opportunity for Neustar to allocate .US Premium Names to support organizations or activities that will help spread awareness or encourage growth of the .US domain.
As part of an overall effort by Neustar, to raise awareness and use of the .US domain, the PDN Plan would make available to the public at a premium price certain high-value, highly-visible, premium .US domain names (“.US Premium Domains”), some of which are currently designated as “reserved” (including one- and two-character .US domain names), and others that would be newly designated as such. Given the level of investment, buyers of high value premium domain names typically put these names to good use – building web properties that are heavily marketed and promoted. This is beneficial to the entire namespace, getting the most coveted names circulated.
While intended to protect existing intellectual property rights and preserve the legacy locality namespace, the release and implementation of a premium name space will foster new growth for the .US domain extension using current best practices and allocation standards. Throughout the plan, all policies and restrictions regarding two-character state and territorial abbreviations or numbered domain names are recommended to still be in effect.
For more details, please review the full text of the plan.
The Council is seeking public comments on the following questions:
Should the usTLD policy be revised to allow the release of 1 and 2 character domains?
Should the usTLD registry operator include currently unregistered and registered name as premium names? (The premium plan will not affect existing registrants’ domain names, nor will it affect transfers of existing names.)
What, if any, impact would the introduction of 2 character names at the second level have on the legacy city.state.us registrations in .US? Please explain any concerns you have in detail.
.US TLD Privacy Service Plan http://www.neustar.us/ustld-stakeholder-council/ustld-privacy-service-plan/
The usTLD Stakeholder Council (“Council”) and Neustar, Inc. (“Neustar”), the registry operator for the usTLD, is seeking public comment on its recommendation to allow for the implementation of a registry-based wholesale privacy registration service in the .US Top Level Domain. Stakeholders at the 2015 usTLD Stakeholder Town Hall identified the lack of privacy services as a key issue suppressing domain name registration in the .US TLD. In an increasingly competitive landscape, in which many of the competitors to .US allow some type of privacy or proxy service, Neustar and the Council want to increase domain name registrations to ensure a robust, healthy namespace and believe that the implementation of such services will put .US on an equal footing with its closest competitors in both the generic and country code top-level domain namespaces.
Neustar operates registry services for the usTLD pursuant to a contract with the Department of Commerce. Currently, that contract does not allow for the provision of privacy services. When a registrant buys a domain name, registry policy in line with industry standards require registrars to obtain and provide to the registry, the registrant’s contact information, including name, physical address, email address, and phone number. This information is publically available in the WHOIS database, a searchable directory that holds all the contact information for domain name registrants. The WHOIS database is freely searchable by anyone with access to the internet. In these times of increased awareness of the dangers of identity theft and other threats, many registries and registrars offer privacy services to their registrants. A privacy service lists alternative, reliable registrant contact information in WHOIS, while keeping the domain name registered to its beneficial user, the registrant.
The Council is requesting your comments on a plan that will be submitted to the Department of Commerce that will request authority under the contract to allow privacy services to be implemented for .US.
For more details, please review the full text of the plan.
The Council is seeking public comments on the following questions:
Do you support the implementation of privacy services for .US domain name holders?
What issues, if any, will registrars have with implementing privacy services as set forth in the plan?
Does the plan adequately address the concerns of law enforcement while preserving the expected level of privacy of registrants who request the service?
Following up on its critical statement delivered to the ICANN Board at the recent Hyderabad public meeting, ICA submitted a Thanksgiving Day comment letter decrying the insertion of URS into the .XXX Registry Agreement (RA) via contract negotiation and declaring—
“GDD staff should demonstrate their clear commitment to ICANN’s bottom-up policymaking process by ceasing and desisting from seeking top-down imposition of new gTLD RPMs in legacy gTLD RA negotiations until the RPM Review WG has completed its work reviewing those RPMs and its final recommendations – including whether those RPMs should become Consensus Policy — have been acted upon by the GNSO Council and ICANN Board.”
While the Global Domain Division (GDD) continues to maintain that such acceptance of new gTLD RPMs by older TLDs is strictly voluntarily and agreed to in balanced bilateral negotiations, that version of events lacks credibility when GDD staff starts each negotiation by taking the position (in the words of its head), “SO BASICALLY THE NEGOTIATIONS ARE — THE REGISTRIES COME AND ASK FOR SOMETHING AND WE TELL THEM PLEASE ADOPT THE NEW gTLD CONTRACT”. That is especially true in this instance, when the registry operator stands to reap very substantial financial rewards by agreeing with that GDD suggestion.
While the .XXX RA received only a few comments, we are pleased that our colleagues in the Business Constituency BC) once again stood firmly for the principle that policy decisions must emerge from the ICANN community through the standard bottom-up policy development process, stating:
The BC sustains its procedural objection to these proposals, through which GDD staff unilaterally seeks to establish a new status quo for registry agreements. By substituting its judgment for established policy, we respectfully believe that staff exceeds its powers and overrides safeguards intended to preserve transparency and inclusion within the multi-stakeholder community… Although the BC has been a strong advocate for the new RPMs as applied to new gTLD registries, this PDP continues to consider fundamental questions about how the new RPMs should function and how they could evolve in the future.
The GNSO may ultimately articulate a Consensus Policy that calls for different measures for legacy gTLDs than are now being used with the new gTLDs. If the GDD persists in forcing registries to adopt these preConsensus Policy RPMs, it may widely implement procedures that do not align with the GNSO’s ultimate conclusions. Further, as ICANN policy staff has recognized, application of the RPMs to legacy gTLDs raises certain transition issues that are not addressed by implementation via contract. Finally, in the absence of such RPMs being Consensus Policy, registrants may have legal grounds to question their imposition…. Moreover, the ICANN Bylaws reserve the power to set gTLD policy to the GNSO. The new RPMs have not, in their current form, received the uniform support from GNSO constituents and, as discussed above, have not undergone the procedure set forth in the Bylaws to become Consensus Policies. While greater consistency as between registry agreements is a worthwhile goal, and convenient for ICANN in terms of contractual compliance, it cannot supersede consistency of action in accord with ICANN’s Bylaws.
Unfortunately, the Intellectual Property Constituency (IPC) continues to endorse the GDD’s fiction of voluntary registry adoption, stating in its comment:
The IPC applauds ICM Registry LLC (ICM) and other Registry Operators that choose to implement rights protection mechanisms (RPMs) contained in the base New gTLD Registry Agreement. The IPC also encourages Registry Operators to voluntarily adopt industry best practices beyond the minimum rights protections required by ICANN, such as adding new restrictions against abusive registrations and suspension mechanisms, implementing blocking prior to registration, and creating new dispute procedures… The IPC also encourages ICANN to educate Registry Operators that the required RPMs are not a “ceiling” but a “floor”–the minimum required– and the Internet community is best served by Registry Operators that strive to go above and beyond the minimum by adopting industry best practices. ICANN need not undertake a policy development process for Registry Operators to voluntarily implement new RPMs.
The IPC overall appears to take the somewhat shocking and dangerous position that an ICANN-accredited registry can at any time unilaterally invent and enforce registration restrictions, suspension mechanisms, blocking mechanisms, and entirely new dispute procedures simply by labeling them “rights protections” without regard to relevant ICANN policy or registrant legal rights.
The ICA comment concludes with this statement:
“Given the history of flimsy and self-serving justifications by GDD staff and the ICANN Board for similar actions taken in 2015, we are under no illusion that this comment letter will likely be successful in effecting removal of the URS and other new gTLD RA provisions from the revised .XXX RA. Nonetheless, we strenuously object to this GDD action that intrudes upon and debases ICANN’s legitimate policymaking process, and urge the GDD and Board to reconsider their positions, and to ensure that GDD staff ceases and desists from taking similar action in the context of future RA renewals and revisions until the RPM Review WG renders the community’s judgment as to whether the URS and other new gTLD RPMs should become Consensus Policy and such recommendation is reviewed by HNSO Council and the ICANN Board.”
ICA will continue to monitor this proposed RA revision – and all subsequent renewals of legacy gTLDs (including the 2017 renewal of .Net) – and to speak out against staff actions that subvert ICANN’s established policymaking process.
The full text of our comment letter follows—
Philip S. Corwin, Founding Principal 1155 F Street, NW Suite 1050
Washington, DC 20004 202-559-8597/Direct
November 24, 2016
Internet Corporation for Assigned Names and Numbers 12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536
Re: Proposed Amendment to .XXX Registry Agreement to Transition to New Fee Structure and to Adopt Additional Safeguards
I am writing on behalf of the members of the Internet Commerce Association (ICA). ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.
This letter addresses the Proposed Amendment to .XXX Registry Agreement to Transition to New Fee Structure and to Adopt Additional Safeguards that was published for public comment on October 12, 2016.
Reduction of Per Transaction Registry Fee
ICA has no objection to the principal material benefit provided by the revised RA to ICM Registry, the registry operator for .XXX, which is a phased reduction of its per transaction registry fee from the current level of $2.00 to the standard registry fee of $0.25 by mid-2018. The initial high level fee was based upon ICANN concerns that this adult content sponsored TLD (sTLD) could result in substantial litigation and related expenses for ICANN. Those concerns have not been realized, and there no longer seems to be any substantive reason to continue charging eight times the standard registry fee to the operator of .XXX. GDD should properly have approved the phased fee reduction without pressing for additional unrelated concessions by ICM as conditions for approval.
This 87.5 reduction will, based upon a published report that .XXX currently holds 170,000 domains, will be worth $297,500 in annual reductions at that level of sTLD domain registrations, bringing the annual fees paid by ICM to ICANN down from $340,000 to $42,500. As the revised RA also contains an increase in the quarterly fee payable to ICANN from $2,500 to $6,500, the total net annual benefit at current registration levels will be reduced to $281,500.
The very substantial financial benefit to be reaped by ICM Registry – aggregating to an additional $2.815 million in retained revenue over the decade following full implementation – illustrate precisely why the concept of “voluntary” agreement by a registry seeking beneficial changes in its RA in closed door, non-transparent negotiations with GDD staff is a false but convenient fiction. In this instant case we have two negotiating parties. ICM Registry, presented with the opportunity for retaining substantial additional domain revenues, and already subject to Uniform Rapid Suspension (URS) and other new gTLD rights protection mechanisms (RPMs) at its .adult, .porn and .sex new gTLDs, cannot be expected to take the integrity of maintaining bottom-up, multistakeholder policy development into account and elevate it over its own financial interest. And GDD staff has already illustrated their willful blindness to the policy implications of pressing legacy gTLDs to adopt new gTLD (RPMs).
Thus, two parties with no central role in ICANN’s policy development process are effectively permitted to collude in closed door negotiations on a decision with broad policy implications. With each legacy TLD revision in which GDD staff succeeds in imposing new gTLD provisions that are not yet ICANN Consensus Policy they create de facto consensus policy, one negotiation at a time. This is wrong and it should stop.
De Facto Consensus Policy Through Non-Transparent Contract Negotiations
The underlying policy issue created by GDD pursuit of the imposition of new gTLD RPMs on legacy gTLDs through contract negotiations was raised to a high profile within the ICANN community in 2015 when the revised RAs for .travel, .cat and .pro were challenged by multiple segments of the ICANN Community.
ICA’s comment letter of June 21, 2015 stated in part:
The ICA is strongly opposed to the inclusion of new gTLD rights protection mechanisms (RPMs), particularly Uniform Rapid Suspension (URS), in this renewal agreement (RA) for a legacy gTLD. We believe that this attempt by ICANN contracting staff to create de facto Consensus Policy via individual registry contract, absent a relevant Policy Development Process (PDP), is a glaring example of the type of top down, unaccountable action that should be targeted by enhanced accountability measures accompanying the IANA transition proposal. Contracts with legacy gTLDs can contain and enforce Consensus Policy, but it is an impermissible violation of ICANN’s Bylaws for contracts to attempt to create Consensus Policy…. The potential addition of these RPMs to legacy gTLDs through this inappropriate avenue will have a substantial and deleterious effect on ICANN’s policymaking process going forward, will create a new and dangerous precedent whereby de facto Consensus Policy can be created by contractual fiat in violation of ICANN Bylaws, and will substantially and adversely affect third parties around the world consisting of the existing registrants of more than one hundred million legacy gTLD domains.
In addition to ICA, that general line of reasoning was echoed by the Electronic Frontier Foundation, IP Justice, and ICANN’s Business Constituency (BC) and Non-Commercial Stakeholders Group (NCSG).
On July 31, 2015 GDD staff published its Report of Public Comments regarding the Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement. In defense of the inclusion of the URS in the proposed .Travel Registry Agreement and other RAs, the report stated:
Although the URS was developed and refined through the process described here, including public review and discussion in the GNSO, it has not been adopted as a consensus policy and ICANN staff has no ability to make it mandatory for any TLDs other than those subject to the new gTLD registry agreement. Accordingly, ICANN staff has not moved to make the URS mandatory for any legacy TLDs, and it would be inappropriate for staff to do so. In the case of .TRAVEL and other legacy TLD registry agreement renewals (.JOBS) and proposed renewals for .CAT and .PRO registry agreements, inclusion of the URS was developed as part of the proposal in bilateral negotiations between the registry operator and ICANN. (Emphasis added)
This self-serving justification takes the position that GDD’s opening position in these negotiations is not an attempt to make any particular revision “mandatory”, and that a registry’s agreement to a GDD request is entirely “voluntary” within the context of balanced, bilateral negotiations. It is true that under ICANN’s new standard registry agreement any registry operator has a presumptive right of renewal of its RA – but only of the exact same RA, with no material changes in its terms and conditions. But all three of the registries accepting URS in their 2015 renegotiations sought and received material beneficial changes in their RAs that GDD staff had the exclusive power to approve, and to condition upon the acceptance of other unrelated revisions.
To the collective dismay of ICA and other parties that objected to the 2015 actions, ICANN’s Board chose to back GDD staff rather than defend the community-based policymaking process. On February 3, 2016, in response to “Reconsideration Requests 15-19 (the ICANN Business Constituency & the ICANN Noncommercial Stakeholder Group (NCSG)) and 15-20 (The Internet Commerce Association)”, ICANN’s Board adopted the Board Governance Committee’s denial of the two referenced Requests.
That action was based upon the flimsy rationale that—
The inclusion of the new gTLD RPMs in the Renewed Registry Agreements is part of the package of agreed-upon terms resulting from the bilateral negotiations between ICANN and each registry operator, and not, as Requesters claim, a “unilateral decision by ICANN contractual staff.” The Requesters present no evidence to the contrary – i.e., that applying the new gTLD RPMs to the Renewed Registry Agreements was based on a unilateral decision by ICANN staff. The Requesters suggest that the Board should have reviewed all of ICANN staff’s communications with the .CAT, .TRAVEL, and .PRO registry operators in order to confirm that the negotiations were in fact bilateral. Such contention, however, does not support reconsideration.
The Board’s decision was based upon the false premise that the negotiations between a registry operator requesting material and beneficial alterations in its RA can be bilateral and balanced when GDD staff have placed requested changes on the table at the start of negotiations and have the unrestricted power to deny the requested RA changes unless their requests are acceded to. The Board also failed to review the full record of communications between the negotiating parties to judge whether the final draft agreement was coerced by GDD staff.
The myth of “voluntary” acquiescence to GDD negotiating demands is even more stark in the present case, in which ICM stands to benefit in the amount of almost $300k per annum simply by acquiescing to them. The disparity in bargaining power is even more pronounced in the instant case, in which ICM has sought and will receive substantial continuing monetary benefits. The interest of the ICANN community in maintaining a transparent and bottom-up policy development process was not represented by either party to this negotiation.
GDD Continues to press for RPM Adoption as a Condition of Negotiation Agreement
Notwithstanding the lack of full transparency in the current comment request, there is little doubt that inclusion of the URS was done at the behest of the GDD in its negotiations with ICM.
In the three RAs at issue in 2015, the request for public comment clearly stated:
With a view to increase the consistency of registry agreements across all gTLDs, ICANN has proposed that the renewal agreement be based on the approved new gTLD Registry Agreement as updated on 9 January 2014.
In the current instance the history of how agreement to the URS came about is vague, with the request for comment stating only:
During the course of discussions, ICM informed ICANN that ICM would agree to add both additional safeguards contained in the form new gTLD Registry Agreement, and a phased implementation of a reduction of fees based on ICM’s compliance with the terms of the .XXX Registry Agreement.
The mystery of whether URS inclusion in the revised .XXX RA was sought by GDD was cleared up at the Public Forum held at ICANN 57 in Hyderabad, India on November 8, 2016. During the Forum I made a statement (included in the Appendix at the end of this letter) regarding the proposed revisions.
In response, GDD head Akram Atallah stated:
SO BASICALLY THE NEGOTIATIONS ARE — THE REGISTRIES COME AND ASK FOR SOMETHING AND WE TELL THEM PLEASE ADOPT THE NEW gTLD CONTRACT. AND IF THEY PUSH BACK ON IT AND THEY SAY THEY DON’T WANT SOMETHING, WE CAN FORCE THEM TO TAKE IT. (Emphasis added)
In Mr. Atallah’s defense, the raw transcript may be mistaken and the word he used in the second sentence may have been “can’t”. If that was his assertion, we must question its real world accuracy based upon the feedback we have received from contracted parties regarding the tough negotiating position that ICANN’s GDD and Legal staff take in such RA revision discussions.
Yet, regardless of whether ICM eagerly embraced URS or initially resisted it, Mr. Atallah was quite clear in his response that, in each and every negotiation in which a registry “asks for something”, GDD staff tells them “Please adopt the new gTLD contract” as its initial bargaining position – even though that contract contains multiple provisions which remain “implementation details” and have not been adopted as “Consensus Policy” through proper GNSO procedures and Board adoption.
Launch of the PDP Review of All Rights Protection Mechanisms in All gTLDs
From a policy development perspective, the principal difference between last year’s actions and the instant case is the intervening creation of the PDP Review of All Rights Protection Mechanisms in All gTLDs. The Working Group’s (WG) Charter was approved by the GNSO Council on March 15, 2016.
That Charter’s “List of Potential Issues for Consideration in This PDP” includes this overarching one:
Should any of the New gTLD Program RPMs (such as the URS), like the UDRP, be Consensus Policies applicable to all gTLDs, and if so what are the transitional issues that would have to be dealt with as a consequence?
The actions of GDD staff in proposing adoption of new gTLD registry provisions by incumbent gTLDs severely prejudices the work of the PDP by creating de facto policy decisions in advance of its preliminary report and recommendations. Further, the GDD’s position in RA negotiations is materially flawed in that it fails to consider and address important “transitional issues”, including the necessary legal steps to bind legacy gTLD registrants to use of the URS when it has not been adopted as a Consensus Policy through proper PDP methodologies.
I spoke to this matter in my Public Forum Statement at ICANN 57, stating:
SO I’LL END WITH THIS QUESTION: I DON’T KNOW WHAT THE RPM WORKING GROUP IS GOING TO RECOMMEND ON URS BECOMING CONSENSUS POLICY. MY OWN MIND IS COMPLETELY OPEN ON THIS POINT DEPENDING ON WHAT OUR WORK FINDS AND WHAT CHANGES MIGHT BE MADE IN IT.
BUT IF WE WERE TO RECOMMEND THAT URS SHOULD NOT BE CONSENSUS POLICY … WOULD GDD STAFF CONTINUE THIS PRACTICE IN NEGOTIATIONS? IF THE ANSWER IS NO, THEN I MAINTAIN IT’S INAPPROPRIATE FOR THEM TO DO IT NOW. AND IF THE ANSWER IS THAT THEY’RE GOING TO KEEP DOING IT EVEN IF WE COME OUT AGAINST IT BEING CONSENSUS POLICY, THEN DOESN’T THAT RENDER THAT PART OF OUR CHARTER WORK A SOMEWHAT IRRELEVANT EXERCISE IN FUTILITY?
In response, Mr. Atallah stated:
IF THE POLICY COMES BACK AND SAYS THAT THE URS IS NOT SOMETHING THAT WE WANT TO HAVE AS A POLICY, OF COURSE, WE WOULD SUPPORT THAT.
Although the response is a tad ambiguous, read in its best light it indicates that GDD staff might cease their practice of suggesting adoption of new gTLD RPMs by legacy TLDs in RA renewal or revision negotiations if the WG recommends against their adoption as Consensus Policy.
If that is a correct reading of GDD’s position, then the proper action for it to take going forward is to cease and desist from urging legacy gTLDs to adopt those RPMs in RA negotiations while the RPM Review WG is active, because a recommendation of the WG that the RPMs not become Consensus Policy would merely be an extension of the status quo. If it is an incorrect reading, then the PDP deliberations of the WG on this central question are indeed an irrelevant exercise in futility and make a mockery of ICANN’s purported commitment to a bottom-up policymaking process.
For the record, ICA has taken no position on whether URS or any other relevant new gTLD RPM should become ICANN Consensus Policy applicable to .Com and other legacy gTLDs. Our position on that matter shall be based upon the PDP’s review and findings regarding the actual implementation of the URS, and particularly whether it is being uniformly administered as a narrow supplement to the UDRP in which bad faith registration and use are demonstrated by clear and convincing evidence. Our position will also be dependent on whether any alterations of the URS are recommended – and, in particular, whether a domain transfer option is recommended with its potential to turn the URS into a rapid and inexpensive means of hijacking valuable legacy domains.
(For the record, while I am one of three Co-Chairs of the RPM Review WG, that position gives me a co-equal voice solely on administrative matters, and no authority whatsoever to steer that very large WG to any particular policy recommendation.)
Lack of IFFOR Review and Approval of the Revised RA
The revised RA on which we are commenting also raises unique issues insofar as .XXX is a sponsored TLD for which a governing, policy-setting organization was required due to the controversial nature of the adult content hosted at .XXX domains.
IFFOR comprises a Board, Policy Council and staff which work together in developing and approving IFFOR’s work.
The Board comprises three members, on two-year terms, one of whom is chosen by ICM Registry.
The Policy Council comprises nine members, representing four stakeholder groups. Five members represent the sponsored community for dot-xxx domains, and then there is one representative for each of the other groups that represent: free expression; child advocacy; privacy and security. The ninth member is chosen by ICM Registry.
The staff comprises an Executive Director and Manager of Public of Participation, and an Ombudsman.
Most important for the present circumstance, IFFOR develops policies that apply to all owners of .XXX domain names, and its Baseline Policies contain a provision that is directly relevant to the same trademark protection concerns that underlie the URS:
No registrant may register an abusive string in the sTLD including, without limitation, strings that infringe the intellectual property rights of a third party, including common law trademark rights; strings that are obvious variants of well-known trademarks not belonging to the registrant; first and last names of an individual other than the individual or his/her agent or names that suggest the presence of child abuse images. (Emphasis added)
IFFOR is referenced in the request for public comment in the following way:
Additionally, ICANN reviewed the most recent IFFOR audit report of the Registry Operator’s CRS and found that the system is not only fully functional, but exceptionally functional and compliant for its intended purposes. ICM conveyed its belief that IFFOR’s Audit Report and trend analysis demonstrate effectiveness regarding mitigating abuse on the .XXX gTLD and further maintained that the .XXX gTLD no longer carries risk, for either ICANN or the Internet stakeholders initially concerned with the launch of .XXX. ICM explained that the data shows that the system has been enhanced beyond its original capabilities and has now demonstrated high levels of utility for its operation and ease of use, which is evidenced by a pattern of decline in cases.
However, there is no further indication that IFFOR had any role in reviewing and approving the proposed RA, despite the presence of RPM provisions that relate to trademark protection and therefore are clearly within IFFOR’s existing Policy remit. Additionally, the fact that IFFOR’s Audit Report found that .XXX no longer carries risk for ICANN (a conclusion that ICANN implicitly accepted given its agreement to reduce registry fees by 87.5%), as well as that IFFOR’s existing anti-infringement policy is effectively preventing significant infringement, plus the fact that .XXX are restricted solely to members of the Sponsored Community, calls into question why the URS was even introduced into the RA negotiations — save for GDD’s preexisting decision to seek its imposition in each and every RA renegotiation.
Given the lack of any clear evidence that the revised RA has been reviewed or approved for IFFOR, final action by ICANN should be deferred until that process occurs.
Unfortunately, while we have no objection to granting ICM the .XXX registry fee reduction it has justifiably sought, we must object to the proposed RA’s approval given GDD’s imposition of extraneous new gTLD RA provisions into a legacy TLD agreement, and the consequent de facto creation of policy in regard to matters that are presently under consideration by a GNSO-chartered PDP.
Given the history of flimsy and self-serving justifications by GDD staff and the ICANN Board for similar actions taken in 2015, we are under no illusion that this comment letter will likely be successful in effecting removal of the URS and other new gTLD RA provisions from the revised .XXX RA. Nonetheless, we strenuously object to this GDD action that intrudes upon and debases ICANN’s legitimate policymaking process, and urge the GDD and Board to reconsider their positions, and to ensure that GDD staff ceases and desists from taking similar action in the context of future RA renewals and revisions until the RPM Review WG renders the community’s judgment as to whether the URS and other new gTLD RPMs should become Consensus Policy and such recommendation is reviewed by HNSO Council and the ICANN Board.
We appreciate the opportunity to provide these comments on the proposed revision of the .XXX RA. We hope they are helpful to the further consideration of this matter by ICANN and its community.
Philip S. Corwin
Counsel, Internet Commerce Association
Appendix – Transcript of Public Comments of Philip S. Corwin at ICANN 57 Public Forum, Hyderabad, India, November 8, 2016 (raw transcript edited for accuracy)
>>PHILIP CORWIN: GOOD MORNING. PHILIP CORWIN. I WEAR MANY HATS IN THE ICANN WORLD ONE OF THEM AS A COUNCILLOR FOR THE BUSINESS CONSTITUENCY ON THE GNSO COUNCIL. ANOTHER IS CO-CHAIR OF TWO WORKING GROUPS INCLUDING ONE REVIEWING ALL RPMs AT ALL GTLDS. BUT THE HAT I’M WEARING FOR THIS STATEMENT IS THAT OF COUNSEL TO THE INTERNET COMMERCE ASSOCIATION.
YOU ALL RECALL THAT LAST YEAR GLOBAL DOMAINS DIVISION STAFF NEGOTIATED .CAT, PRO AND TRAVEL, REGISTRY AGREEMENT RENEWALS ALL OF WHICH INCLUDED SO-CALLED VOLUNTARY ADOPTION OF UNIFORM RAPID SUSPENSION. ICA PROTESTED THAT AS DID MANY OTHERS SAYING THAT IT WAS MAKING POLICY THROUGH CONTRACT NEGOTIATIONS. WE FILED A RECONSIDERATION REQUEST AS DID THE BC AND THE NCSG JOINTLY. AND THAT HASN’T HAPPENED VERY OFTEN. AND I WANT TO NOTE HERE THAT MY BC COLLEAGUES FAVOR ADOPTION OF URS AS CONSENSUS POLICY BUT TOOK A VERY PRINCIPLED STAND AGAINST GETTING TO THAT RESULT THROUGH THIS MANNER.
BUT GDD AND THE BOARD IN THAT PROCESS SAID THAT, OF COURSE, IT WOULD BE WRONG TO FORCE URS ON REGISTRY OPERATORS THROUGH NEGOTIATIONS BUT THAT THESE RESULTS WERE VOLUNTARY AND, THEREFORE, OKAY.
NOW, ON OCTOBER 12th, ICANN PUBLISHED FOR PUBLIC COMMENT A RENEWAL AGREEMENT FOR .XXX IN WHICH THEY TOO AGREE TO URS FOR A 87% REDUCTION IN THEIR REGISTRY FEES. ONE HAS TO WONDER WHAT A REGISTRY OPERATOR WOULDN’T AGREE TO IN EXCHANGE FOR THAT TYPE OF REDUCTION.
SO I’LL END WITH THIS QUESTION: I DON’T KNOW WHAT THE RPM WORKING GROUP IS GOING TO RECOMMEND ON URS BECOMING CONSENSUS POLICY. MY OWN MIND IS COMPLETELY OPEN ON THIS POINT DEPENDING ON WHAT OUR WORK FINDS AND WHAT CHANGES MIGHT BE MADE IN IT.
BUT IF WE WERE TO RECOMMEND THAT URS SHOULD NOT BE CONSENSUS POLICY — [TIMER SOUNDS.] CAN I JUST FINISH THIS? — WOULD GDD STAFF CONTINUE THIS PRACTICE IN NEGOTIATIONS? IF THE ANSWER IS NO, THEN I MAINTAIN IT’S INAPPROPRIATE FOR THEM TO DO IT NOW. AND IF THE ANSWER IS THAT THEY’RE GOING TO KEEP DOING IT EVEN IF WE COME OUT AGAINST IT BEING CONSENSUS POLICY, THEN DOESN’T THAT RENDER THAT PART OF OUR CHARTER WORK A SOMEWHAT IRRELEVANT EXERCISE IN FUTILITY? THANK YOU VERY MUCH.
>>AKINORI MAEMURA: THANK YOU VERY MUCH. [APPLAUSE] ANYONE TAKES? NO?
>>CHERINE CHALABY: AKRAM, DO YOU WANT TO MAKE A COMMENT ON THAT, PLEASE?
>>AKRAM ATALLAH: SURE, THANK YOU. SO BASICALLY THE NEGOTIATIONS ARE — THE REGISTRIES COME AND ASK FOR SOMETHING AND WE TELL THEM PLEASE ADOPT THE NEW gTLD CONTRACT. AND IF THEY PUSH BACK ON IT AND THEY SAY THEY DON’T WANT SOMETHING, WE CAN FORCE THEM TO TAKE IT. IT’S A NEGOTIATION BETWEEN TWO PARTIES, AND I THINK IT’S WITHIN THE REMIT OF THE CORPORATION TO NEGOTIATE ITS CONTRACTS. IF THE POLICY COMES BACK AND SAYS THAT THE URS IS NOT SOMETHING THAT WE WANT TO HAVE AS A POLICY, OF COURSE, WE WOULD SUPPORT THAT. THANK YOU.
>>PHILIP CORWIN: I APPRECIATE THE LAST PART OF YOUR STATEMENT, AKRAM. THANK YOU VERY MUCH.