On July 25th ICANN announced the publication of the Draft Report of the Independent Review of the Trademark Clearinghouse (TMCH). This study was coordinated for ICANN by the Analysis Group, in conjunction with researchers from the Center for Internet and Society at Stanford as well the University of Pennsylvania’s Wharton School.
The Report’s Executive Summary provides a background on its origin and purpose:
The Trademark Clearinghouse (“TMCH”) was established in March 2013 and serves as central repository for information to be authenticated, stored, and disseminated, pertaining to the rights of trademark holders in ICANN’s New Generic Top-Level Domain (“new gTLD”) program. Analysis Group was commissioned by ICANN to undertake an independent review of TMCH services based on the Governmental Advisory Committee (“GAC”) recommendation in May 2011 that a comprehensive, post launch review be performed. The purpose of this review is not to make policy recommendations, but to assess the strengths and weaknesses of the TMCH services in conjunction with the specified areas for review proposed by the GAC. Specifically, our review is focused on the TMCH matching criteria, as well as the Claims Service and Sunrise Services. (Emphasis added)
That section makes clear that, while public comments on the draft report will be accepted through September 3rd, this Report was triggered by GAC concerns expressed before the Applicant Guidebook for the new gTLD program was even completed, and is not the work product of a GNSO-created working group and therefore will not directly result in the establishment of any new ICANN policy.
However, this Report will be of use to the Working Group (WG) established to review all Rights Protection Mechanisms (RPMs) in all generic Top Level Domains (gTLDs), of which I am one of three Co-Chairs. A sub-team of the WG is currently engaged in identifying available data to inform its policy discussions focusing on the TMCH and the related Claims Service and Sunrise Registration programs. The full WG will engage in an intensive review of all the available data relating to these subjects, including this Report, and then will reach its own consensus conclusions on policy recommendations.
As summarized by ICANN, the Report made three key findings (which are reproduced below along with relevant quotes from the Report’s Executive Summary) :
These are valuable findings and observations and will receive due consideration by the RPM Review WG.
In regard to any proposed expansion of the matching criteria, I lean against that option for two separate reasons. First, the TMCH is supposed to be a repository of registered trademarks meeting certain qualitative criteria, and permitting the registration of inexact matches would erode its value as a global trademark database. Second, after all the divisive debate within ICANN over adoption of Trademark-plus-Fifty, which permits trademark owners to register inexact matches of their marks in the TMCH corresponding to typosquat or domain-plus-product/services domains that were recovered in trademark litigation or a UDRP actions, the actual registration of Trademark-plus-Fifty terms in the TMCH has been quite low.
Finally, the Report was unable to quantify the extent to which the transmission of Claims Notices by registrars to individuals attempting to register domains that matched marks in the TMCH was either deterring infringing registrations, or causing non-infringing registrations to be abandoned out of fear of unwarranted resulting legal action. In this regard the Report states:
Although it is possible that the Claims Service and matching criteria may help deter rights-infringing registrations that are exact matches to trademark strings recorded in the TMCH, it is also possible that some good-faith registrations are being deterred by the current Claims Service system, which may be detrimental to the registration activity of non-trademark-holder domain registrants. Limitations of our data do not allow us to definitively conclude whether Claims Service notifications have a deterrent effect on either type of registration activity.
In relation to this inconclusive analysis, the report also documents that:
In regard to that very low dispute rate involving completed registrations of domains that triggered generations of a Claims Notice, the Report suggests possible reasons:
There are several possible reasons why the dispute rate on Claims Service notifications is so low. First, bad-faith registrations may be largely abandoned when a Claims Service notification is received, so very few domains are registered that trademark holders would wish to dispute. Second, there may be a lag between the time a domain is registered and discovered by a trademark holder and when a dispute is filed, causing us to see some registrations as non-disputed when they may become disputed in the future (i.e., we do not observe a dispute in the dispute data because it is limited to disputes that occurred before the end of 2015). Third, trademark holders may be generally less concerned by the domain registrations in the Claims Service data, either because the domain names are low-priority for disputes or because exact match registrations made in new gTLDs are less threatening to trademark holders than registrations in legacy TLDs like .com.
To evaluate whether the first explanation explains our results, we would need information on the domain names that were attempted in abandoned registrations. However, the Claims Service data only contain domain names for completed registrations. Therefore, we are unable to evaluate the characteristics of abandoned registration attempts.
I have been concerned since Spring 2015 that receipt of a highly legalistic Claims Notice may have scared off potential new gTLD registrants with no infringing intent but who are not sophisticated about trademark law, writing at that time:
No doubt there have been attempts by intentional cybersquatters to register trademarked names that have been effectively deterred when they received a Claims Notice and realized that the trademark owner would be notified of the domain registration immediately and might well take some form of legal response.
But there also may have been lots of potential registrants for non-infringing uses of short and meaningful generic dictionary words as domain labels who were spooked enough when they received the Claims Notice to abandon the registration. While the Claims Notice does provide a prospective registrant with information regarding the Jurisdiction where the trademark is registered and the class of Goods and Services that the trademark covers, most prospective registrants of non-infringing domains are not well versed in trademark law, don’t want to have to spend money to consult a lawyer to see if their registration will be infringing or not, and don’t want to risk being hit with a cease-and-desist letter, UDRP or URS filing, or a trademark infringement lawsuit. The same could be true even for potential registrants well versed in trademark law who simply don’t wish to expose themselves to a potential legal action, regardless of its merits — especially since continuing on to registration after receipt of the Notice might be alleged to constitute proof of bad faith registration…the TMCH has almost surely been quite effective in deterring infringing domain registrations at new gTLDs. But it appears to also have been a substantial damper on total new gTLD domain registrations. The unanswered question is how big of a headwind it has been.
The RPM Review WG may well try to find a more definitive answer to that question, and one promising area of inquiry is finding out what relevant data may lie outside of the TMCH in any records of attempted and abandoned registrations held by registrars. The WG may also consider making the language of the Claims Notice more understandable and less intimidating for the domain purchasing general public.
Overall, the Report provides much useful data and analysis for the Working Group’s further consideration, as it proceeds to comprehensively review the new gTLD PRMs and considers whether to recommend any modifications of them.
It’s been almost six weeks since the NTIA announced “that the proposal developed by the global Internet multistakeholder community meets the criteria NTIA outlined in March 2014 when it stated its intent to transition the U.S. Government’s stewardship role for the Internet domain name system (DNS) technical functions, known as the Internet Assigned Numbers Authority (IANA) functions”, and thereby signaled the start of the last lap of the IANA transition marathon.
In the interim since that announcement ICANN held a well-regarded, policy focused mid-year meeting in Helsinki that saw the ICANN community begin to engage on multiple Work Stream (WS) 2 accountability measures that, while deemed not to require resolution prior to the transition, are nonetheless very important matters – including remaining legal jurisdiction questions, heightened transparency tools and powers, human rights, and ICANN staff accountability.
Also, several DC think tanks recently held programs on the transition, at which some speakers advocated the “test drive” approach first broached at a May Senate Commerce Committee hearing. That soft transition concept would somehow provide for a period in which both the transition of IANA functions control and new community accountability powers could be tried out, but with the U.S positioned to intervene if significant problems arose or if the WS2 issues were not resolved satisfactorily. But advocates have yet to advocate a practical means by which this setting ICANN free while retaining residual control could be accomplished, and the clock is steadily ticking down to the September 30th expiration of the current and likely last IANA contract between NTIA and ICANN.
NTIA had already rebuffed the soft transition concept as unnecessary, impractical, and counterproductive, but last week it upped the pressure for transition completion. In remarks delivered last Thursday at the IGF-USA conference in Washington, Assistant Secretary of Commerce for Communications and Information Lawrence E. Strickling delivered a rousing defense of moving forward with the IANA transition, combined with a strong rebuke of transition critics, declaring:
I come here today to speak out for freedom. Specifically, Internet freedom. I come here to speak out for free speech and civil liberties. I come here to speak out in favor of the transition of the U.S. government’s stewardship of the domain name system to the global multistakeholder community. And I come here to speak out against what former NTIA Administrator John Kneuer has so aptly called the “hyperventilating hyperbole” that has emerged since ICANN transmitted the consensus transition plan to us last March…
Extending the contract, as some have asked us to do, could actually lead to the loss of Internet freedom we all want to maintain. The potential for serious consequences from extending the contract beyond the time necessary for ICANN to complete implementation of the transition plan is very real and has implications for ICANN, the multistakeholder model and the credibility of the United States in the global community…
Among the most persistent misconceptions is that we are giving away the Internet… Even more extreme (and wrong) is the claim that we are giving the Internet away to Russia, China, and other authoritarian governments that want to censor content on the Internet….
Another false claim is the fear that ICANN will move its headquarters abroad once the transition is complete and “flee” the reach of U.S. law. However, this ignores the fact that the stakeholder community has spent the last two years building an accountability regime for ICANN that at its core relies on California law and on ICANN to remain a California corporation.
ICANN’s own bylaws confirm that “the principal office for the transaction of the business of ICANN shall be in the County of Los Angeles, State of California, United States of America.” ICANN’s Board cannot change this bylaw over the objection of the stakeholder community…
Other claims keep popping up and I do not have time today to correct every misstatement being made about the transition. For example, after living for two years under an appropriations restriction that prohibits us from using appropriated funds to relinquish our responsibility for the domain name system, it is now asserted that this restriction prevents us even from reviewing the transition plan. Yet this claim ignores the fact that at the same time Congress approved the restriction, it also directed NTIA “to conduct a thorough review and analysis of any proposed transition” and to provide quarterly reports on the process to Congress.
In the last couple of weeks, I have heard new concerns about the possible antitrust liability of a post-transition ICANN. However, this concern ignores the fact that ICANN in its policymaking activities has always been and will continue to be subject to antitrust laws…
I could go on but let me close with some observations on the multistakeholder process. There is no question that within ICANN, the last two years have strengthened the multistakeholder model as it is practiced there. Moreover, the accomplishments of the process at ICANN are serving as a powerful example to governments and other stakeholders of how to use the process to reach consensus on the solutions to complex and difficult issues. However, as we work toward completing the transition, we must recognize that the multistakeholder model will continue to face challenges. It is important that we remain dedicated to demonstrating our support and respect for the multistakeholder approach in all the venues where it is used.
To some extent Secretary Strickling was downplaying unresolved questions that could evolve into significant problems. For example, there are clearly portions of the ICANN community who do not see the transition and accountability plans as a final resolution, but merely as a waystation to moving ICANN out of U.S. jurisdiction. When I advocated in Helsinki that ICANN’s U.S. incorporation be enshrined in a Fundamental Bylaw during the course of WS2 there was vigorous pushback from some quarters. As I wrote back in May:
[E]ven as the transition draws closer, ICANN’s continued status as a non-profit corporation subject to U.S. law — its jurisdictional locus — is rapidly replacing the IANA contract as the new focus for displeasure by those who would have ICANN relocate to another jurisdiction — or even be transformed into a multilateral international intergovernmental organization (IGO), an outcome specifically prohibited under NTIA’s approval criteria. The resolution of this extended debate will have profound ramifications for the future viability of the MSM of Internet Governance (IG), as well as for Internet speech free from governmental interference exercised from the top level of the domain name system (DNS). Until this matter is resolved with finality it will remain a scab to be constantly picked at, always threatening to become a festering sore on the body politic of IG.
Indeed, during the panel discussion that followed Secretary Strickling’s remarks, one speaker opined that if the IANA transition marked ICANN’s “Constitutional moment”, the unresolved corporate jurisdictional question could become for it what the unresolved issue of slavery became for the United States – a cause of eventual civil war.
Nonetheless, with the goal line is sight, NTIA is clearly pressing for transition completion on October 1st. The strong language of Secretary Strickling’s remarks may also be motivated by a sense that NTIA now has the upper hand, given that the likelihood of an extended appropriations freeze preventing a transition in fall 2016 is increasingly doubtful. Last week the Washington Post reported:
Any chance Congress had this year of smoothly completing work on its annual spending bills is now all but dead, leaving Republican leaders to grapple with how to avoid a contentious fight in the weeks before the election over how to avoid the threat of a government shutdown… Republicans are now debating how long a stop-gap spending bill they need to move before the end of the fiscal year on Sept. 30 should last. Congress goes on a seven week recess after this week and will return after Labor Day.
That view was buttressed by a story in the Wall Street Journal:
Heading into this election year, Republican leaders pledged the GOP-controlled Congress would aim to do at least one thing: pass spending bills on time, without a lot of drama…But as Congress enters its last week in session before a seven-week break through Labor Day, the two chambers have yet to pass a single spending bill through both chambers….Congress will still have a few weeks in September to try to pass spending bills before the government’s current funding expires on Oct. 1. Most likely, lawmakers will be forced to pass a short-term spending bill keeping the government running through the election, likely until the end of the year or the first quarter of 2017.
This Congressional spending impasse is directly related to the fate of the IANA transition. The statutory language preventing NTIA from completing the transition expires at the end of FY 2016, which is one second before midnight on September 30th. One second later, at midnight on October 1st, NTIA will be free to hand off the IANA functions to ICANN, assuming that ICANN has completed its remaining pre-transfer obligations.
Prior to the summer recess the House passed a Department of Commerce appropriations bill extending the transition freeze for a year, but the Senate has not followed suit and the prospects for stand-alone DOC funding legislation now appear slim to none. In addition, the language of the FY 2016 freeze was written in a way that a simple FY 17 Continuing Resolution will not carry the freeze language forward into the new fiscal year; it would take an additional explicit provision being grafted on to the C.R. for the transition freeze to be extended. While that’s not impossible, it would be a heavier lift in a hyper-partisan Presidential election year.
Speaking of partisan politics, on July 12th it was reported that the 2016 draft GOP Platform blasts the Administration’s transition plans, stating,
The survival of the Internet as we know it is at risk… [President Obama] unilaterally announced America’s abandonment of the international Internet by surrendering U.S. control of the root zone of web names and addresses. He threw the Internet to the wolves, and they—Russia, China, Iran, and others—are ready to devour it… [Republicans] will therefore resist any effort to shift control away from the successful multi-stakeholder approach of Internet governance and toward governance by international or other intergovernmental organizations
The breakdown of the appropriations process and the failure of “test drive” proponents to provide a detailed blueprint for accomplishing a soft transition argue in favor of the IANA transition proceeding on October 1st. But when members of Congress return in September political passions will be running high, and opponents of the transition may well attempt a Hail Mary play — with NTIA ready to go all out to break it up and push the transition across the finish line. We’ll find out who prevails in late September.
“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” – U.S. Supreme Court Justice Louis D. Brandeis
ICA has long been an advocate for greater transparency in ICANN operations, especially in the decision-making activities of the Board. Back in May 2012, reacting to the announcement that the Board would no longer hold decisional sessions on the final day of each of the three yearly ICANN public meetings, we published a blog titled, “ICANN Board Meetings Should be Webcast Live”. Our view at that time was:
Just because all the ICANN meetings we have attended since ICA’s formation ended with a Board meeting doesn’t mean that particular scheduling is sacrosanct. But we think it’s very beneficial for the global Internet community that ICANN serves to be able to view its decision-making process – and that it’s a big plus for ICANN’s credibility and reputation to open that process to public view… Nowadays any public policy body that makes its decisions behind closed doors is going to be perceived as having something to hide… There’s a lot of U.S. DNA in the DNS. ICANN was created by the U.S. government and is a California non-profit corporation… Sessions of the U.S. House and Senate, and virtually every hearing and markup of every Congressional committee, are now Webcast in real time and then archived for future viewing.
ICANN should do no less. Every official ICANN Board meeting should be webcast in real time. When the Board is meeting telephonically then the Web audiocast should be available simultaneously. And all should be archived for future access and review. Only limited redactions should be made, such as when the Board is discussing internal personnel matters or when the proprietary and confidential information of a contracted party might be revealed, and then only if a rationale is provided. ICANN’s continued authority ultimately rests upon the consent of the networked, and in 2012 the networked expect open access to information about vital decisions with broad repercussions. And, as Supreme Court Justice Louis Brandeis once observed, sunlight is the best disinfectant.
Four years after we expressed that viewpoint, we’re happy to report that ICANN’s Board is finally taking a step toward meeting 21st Century expectations of information access. of At its meeting of May 15, 2016, ICANN’s Board adopted a Resolution on “Enhancing Openness and Transparency” that makes an overdue move toward providing transparency in regard to Board decision-making.
The operative portion of the Resolution reads as follows:
Resolved, the Board directs the President and CEO, or his designee(s), to work with the Board to develop a proposed plan for the publication of transcripts and/or recordings of Board deliberative sessions, with such plan to include an assessment of possible resources costs and fiscal impact, and draft processes to: (i) ensure the accuracy of the transcript; and (ii) for redaction of portions of the transcript that should be maintained as confidential or privileged.
Resolved, the Board expects to evaluate the plan in Helsinki, and if satisfactory to begin testing of the proposed processes relating to publication of transcripts and/or recordings of the Board’s deliberative sessions as soon as practicable after Helsinki.
The Rationale for the Resolution explains the Board’s reasons for adoption:
In support of the continued call for visibility into Board deliberations and processes, the Board has determined to make available transcripts or recordings, where appropriate, of the Board’s deliberative sessions. This effort to enhance openness is likely to also support the ICANN community in enhancing ICANN’s accountability, as it will reduce questions of how and why the Board reaches its decisions. This decision also directly supports ICANN’s previous efforts and the continued goal of operating as openly and transparently in its decision-making. ICANN is also acting consistently with the ICANN’s Bylaws, as set out in Article III, section 1 of the ICANN Bylaws, that, “ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.”
There will be issues before the Board for which confidentiality is still required, and that may require redaction of parts or withholding of full transcripts, and it is important that the community and the Board understand how those decisions will be taken. To that end, the Board is directing the development of a plan, which would include proposed processes by which those redaction decisions for confidentiality and privilege are to be made. That plan should be developed as soon as practicable, and should be ready for Board consideration during ICANN56 in Helsinki.
In a contemporaneous blog post, Board Chairman Steve Crocker shed a bit more light on the Resolution:
We’ve all been talking about trust lately, and the workshop gave the Board an opportunity to take a hard look at what we can do to build trust between ICANN as an organization and all of its stakeholders. This is also an ongoing discussion, and one that we all have a stake in. During the workshop, we considered concrete steps that the Board could take to increase our transparency and accountability. We agreed to post the transcripts and/or recordings of our deliberative sessions and, as a result of this discussion, passed a resolution asking Göran and his team to develop a plan for the implementation of this new procedure, also making sure that we respect confidentiality, as necessary. We know there is a lot of interest in our meetings and discussions, and we look forward to reviewing Göran’s proposal in Helsinki.
We look forward to hearing about the proposed details of the transparency plan when we attend the Helsinki meeting in a few weeks – where the community will also kick off its own discussion of Work Stream 2 accountability measures, including greater transparency within every facet of ICANN operations.
Ideally, the Board transparency measures should take effect as soon as possible, and reasons for redaction should be kept to a minimum and explained in all instances. While transcripts and audio recordings are welcome steps, especially for telephonic meetings, our preference remains for real time webcasts of all physical meetings of the Board. Public portions of the agenda could be addressed first, with anything requiring redaction left for the end of the meeting.
That would let the sunlight of transparency and the electric light of the video image illuminate all future Board decisions. ICANN and its stakeholders will be better off for the transparency this change will bring to ICANN’s most important decision-making process.
During its regular monthly meeting on Thursday, May 12th, ICANN’s GNSO Council confirmed the appointment of ICA Counsel Philip S. Corwin to be a Co-Chair of the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (WG). Corwin represents ICA on ICANN’s Business Constituency (BC) and is one of the BC’s two representatives on the Council.
Corwin is one of three Co-Chairs selected by the WG’s membership. The others two are:
The RPM Review will be conducted in two phases. In Phase One (expected to run through January of 2018), the WG will study the rights protection measures created for the new gTLD program, and also make recommendations regarding whether any changes should be made. That review will proceed in this order:
After completion of Phase One, the WG will move on to Phase Two in which it will review and consider modifications of the Uniform Dispute Resolution Policy (UDRP). Consideration will also be given in this second phase to whether any of the new gTLD RPMs, including URS, should become Consensus Policies applicable to .Com and other legacy gTLDs.
Several ICA members have already joined the WG and other members of the domain investment community are encouraged to do so. ICA has also established its own internal working group to develop policy positions regarding the UDRP, including proposals for its modification, so that ICA’s positions are well developed by the time the Phase 2 UDRP review commences in early 2018.
On March 9th, 2016, during its final open meeting at ICANN 55 in Marrakech, Morocco, the GNSO Council approved a motion that I proposed to adopt the Charter of the Policy Development Process (PDP) to Review all Rights Protections Mechanisms in all Generic Top-Level Domains. I serve on the Council as one of the two representatives of ICANN’s Business Constituency, and my fellow Councilors designated me to serve as the GNSO’s Liaison to the Working Group (WG), and as its Interim Chair.
The Motion approved by the Council provided ICANN staff with a 21-day deadline, ending March 30th, to issue a public call for volunteers to serve on the WG. It is expected that the WG will likely schedule its first virtual meeting in the latter half of April, at which point it will begin to organize its work plan and select a permanent Chair or, more likely, several Co-Chairs. While my selection as Interim Chair is not a guarantee of being one of this WG’s Co-Chairs, I do hope to secure that official role. While not being precluded from advocating particular views in their personal capacity, a Chair or Co-Chair must be fully committed to putting aside their personal views or those of their clients/employer in regard to their official administrative duties and responsibilities to the diverse membership of the WG — and to assure that all WG volunteers have a fair chance to advocate their views and have them considered. Should I secure a Co-Chair slot I will be committed to helping to manage a fair and open process that produces a final report and recommendations that is based in sound legal reasoning and verified empirical data – and that all WG participants can be proud of having contributed to.
While many volunteers will already be participants in ICANN Supporting Organizations (SO) or Advisory Committees (AC), that is not a prerequisite for WG participation. ICANN’s WG Guidelines note that a WG should ideally “mirror the diversity and representativeness of the community”, and that the WG Chair(s) have the responsibility of continually assessing whether the WG has sufficiently broad representation or, conversely, “over-representation to the point of capture”.
The Charter sets forth a two-phased approach, described here:
This PDP Working Group is being chartered to conduct a review of all RPMs in all gTLDs in two phases: Phase One will focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. By the completion of its work, the Working Group will be expected to have also considered the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals.
This PDP may well draw volunteers by the dozens given the importance of the issues it will examine to the trademark law, brand protection, domain investment, and IP public policy sectors, as well to the business models of ICANN’s contracted parties, both registries and registrars. Involvement may be further boosted by the likelihood that any final recommendations made by this WG that are subsequently adopted by ICANN may well fix the rules for the intersection of trademark law and domains for the next decade or more.
Those considering volunteering should be aware of the substantial time commitment involved. Once the WG launches I would expect it to hold a one-hour call almost every week. My personal guesstimate is that the review of new gTLD RPMs will take at least twelve to eighteen months – and that the subsequent UDRP review could take even longer, given the breadth of potential procedural and substantive issues, and the fact that this will constitute the first review of the UDRP since it was adopted at the dawn of ICANN’s creation.
Some members of the domain investment community, as well as other interested parties, may be thinking of waiting until the phase two review of the UDRP commences before becoming engaged in the WG. In my view that would be shortsighted, as working relationships and individual credibility will be established during the RPM phase that will be critically important when the WG pivots to review of the UDRP.
In addition, as the non-exclusive list of Potential Issues listed in the Charter makes clear, the Phase One determination of answers to some of the questions could have a substantial impact on, and set precedents for, the subsequent UDRP review. For example, regarding Uniform rapid Suspension (URS), issues to be considered include:
Likewise, the review of the Trademark Clearinghouse (TMCH) will address such questions as:
TMCH registrations are currently limited to trademarks meeting high verification standards – plus, under the Trademark+Fifty supplementary implementation measure, variations of the mark that have actually been recovered by the rights holder in a UDRP filing or trademark infringement litigation can also be registered. Attempting to register a domain matching a registered mark or TM+50 variation generates a Trademark Claims Notice to the potential registrant, and UDRP panels have yet to clearly define the weight that will be given to receipt of a Claims Notice in determining whether a subsequent domain registration was made in bad faith.
Finally, as for Trademark Claims, review issues include:
While the review has been designed as a two-phased process to make the workload manageable, and to first address potential modifications of new gTLD RPMs before a subsequent round of new gTLDs is launched, this illustrative list of issues makes clear that determinations made during phase one will inevitably implicate the phase two UDRP review.
There is of course a possibility that the WG will encounter significant internal turbulence, especially if some participants seek to re-litigate every substantive aspect of the new gTLD RPMs as well as of the UDRP. On the other hand, there is tremendous opportunity to seek common ground and undertake procedural reforms that provide greater assurance of consistency and predictability for both rights holders and domain registrants — especially if undertaken within a balanced approach recognizing the legitimate rights and interests of all parties, and acknowledging that ICANN’s proper role is to respect legal rights while refraining from the creation of new extralegal rights.
Anyone with a serious interest in trademark rights, domain monetization, and domain industry operations should give serious consideration to joining this WG, while remaining fully cognizant of the long and potentially difficult road ahead. Important and challenging work will be on the agenda for all who choose to engage as volunteers.
On February 11th VeriSign held its Fourth Quarter and Full-Year 2015 Earnings Call with stock analysts. In the course of the call VeriSign revealed that it had reached tentative agreement with ICANN to extend the .Com Registry Agreement (RA) by ten years, with the extension’s start coinciding with the effective date of the IANA contract transition. The current .Com RA is scheduled to terminate on November 30, 2018, with VeriSign having a presumptive right of contract renewal so long as it has effectively managed the premier gTLD and has not materially breached the RA.
Our review of the analyst call yields this preliminary analysis:
As we presently understand the situation, the Cooperative Agreement between VeriSign and the NTIA that imposed the .Com price freeze would remain unchanged and in place through late 2018, and any request by VeriSign to ease the pricing restrictions would be reviewed by NTIA and not by ICANN. That is important, because in 2012 ICANN’s Board approved a .Com renewal agreement that would have permitted four separate seven percent price increases during its six year term, and it was NTIA that imposed the price freeze urged by ICA. It’s also worth noting the near-final ICANN Accountability Proposal that will be delivered to ICANN’s Board next month restricts ICANN’s mission and core functions so that it cannot take on regulatory powers, including those of a competition authority.
ICA will carefully monitor this developing situation as it moves toward the public comment stage, when we will have an opportunity to review the actual written terms of the proposed agreement.
Our preliminary understanding of the agreement is based on the following statements made by VeriSign CEO D. James Bidzos during yesterday’s call:
ICANN and VeriSign are in the final stages of drafting the new Root Zone Maintainer Agreement to perform this Root Zone Maintainer role as a commercial service for ICANN upon the successful transition of the IANA functions… To ensure that root operations continue to perform at the same high level during the expected 10-year term of the Root Zone Maintainer Agreement, ICANN and VeriSign are in discussions to extend the term of the .com Registry Agreement to coincide with the expected 10-year term of the Root Zone Maintainer Agreement, ensuring that the terms of the two agreements are the same, will promote the stability of root operations, and will remove potential instability that might otherwise arise if the terms did not coincide…
While ICANN and VeriSign are in the final stage of preparing the Root Zone Maintainer Agreement and the .com Registry Agreement extension documents, there are several important steps that still need to occur including completing the drafting of the agreements, posting them for public comment and obtaining approvals from ICANN’s and VeriSign’s Board of Directors.
Additionally, under the Cooperative Agreement, we may not enter into the contemplated extension of the .com Registry Agreement without the prior written approval of the Department of Commerce. If the department does not approve the extension, then the current .com Registry Agreement will remain unchanged. We will provide periodic updates, as appropriate, on our progress toward these objectives…
So, first of all, I think it helps to just understand that we’re not actually changing the terms of the .com Registry Agreement. And this is not a renewal. This is an extension… In order to ensure the same steady, available, uninterrupted, secure and stable environment that we’ve been providing for three decades as a Root Zone Maintainer, it is also anticipated – we are discussing – the extension of the .com Registry Agreement for 10 years.
So at that point, should all of these conditions that I described earlier, for example, approval of ICANN’s Board of Directors and VeriSign’s Board of Directors, no changes whatsoever can be made to the .com Registry Agreement without the consent of the NTIA.
So subject to those approvals and the transition occurring, then we would have 10-year concurrent terms for the Root Zone Maintainer Agreement and the .com Registry Agreement. So what you would see is essentially a change of the date, the term, of the .com Registry Agreement.
That’s essentially the change. From an investor viewpoint, instead of a renewal in 2018, you would see a 10-year term that starts with the effective date of the two changes, the Root Zone Maintainer Agreement and the extended .com Registry Agreement. So, instead of November 30, 2018, you would see a date that is 10 years from the effective date of those two…
So, again, qualifying all of this to say that if we conclude our negotiations, we get all the necessary approvals, the triggering event that marks the “effective date” would then be the IANA transition occurring… The target date is September of 2016… I would just reiterate again that what we’re contemplating here, what we’re working towards, is an extension of the .com agreement. So, the terms wouldn’t change in the .com agreement…
So let me just say that, first of all, the terms of the .com agreement will not change, and the presumptive right of renewal, of course, would remain in the .com agreement. The .com agreement doesn’t actually address pricing. That’s addressed separately in the Cooperative Agreement.
The Amendment 11 of the Cooperative Agreement is the section that describes our contractual relationship with NTIA with respect to the root zone maintainer role. And that is the portion that it’s contemplated would essentially move into a new contract, the RZMA that we’re negotiating with ICANN.
Amendment 32 is a separate part of the Cooperative Agreement that addresses pricing with respect to our ability to seek a price change if we think it’s justified by market conditions. So I certainly don’t anticipate that that would change. That would remain. So VeriSign’s right to seek relief from price controls based on market conditions that would warrant it would remain…
I think the extension means that the date changes on the agreement. But any change to the agreement requires the consent of the NTIA. And so, I can’t speak for NTIA. This is their process. The part of the process we’re involved in would be to negotiate the Root Zone Maintainer Agreement with ICANN to present that along with a .com contract that has the date extended and present that to NTIA.
This is, of course, in response to their March 2015 request for a way to transition the root zone maintainer role and to take NTIA out of that process. So that will be up to them when they see it. So I think that’s what they asked for and that’s what they’re looking for. This is not a renewal in the sense that all of the normal things that happen during a renewal would happen. So I don’t quite see it that way…
I anticipate that we would have our Amendment 32 rights to petition based on changing market conditions for price relief. And also that, certainly, the agreement calls for the ability for VeriSign to seek so-called cost-justified price increases and that includes things like cost of implementing Consensus Policies or specific threats to the DNS that are extraordinary that we have to respond to – unanticipated expenses associated with responding to threats. So I don’t see those changing at all… What we’re doing here is we’re seeking an extension to the .com Registry Agreement. The Cooperative Agreement expires in 2018, and we are not seeking any change to that. That is up to NTIA. That is their process, their contract, so I would certainly defer to them… It expires in 2018, but it’s up to NTIA to decide at that point what happens.
The domain investment community represented by the Internet Commerce Association extends a warm welcome to incoming ICANN President and CEO Göran Marby.
Mr. Marby’s selection was announced by ICANN on February 8th. He presently serves as Director-General of the Swedish Post and Telecom Authority and has more than 20 years of experience in the Internet and technology sectors, following his earning of Bachelor of Science from the University of Gothenburg School of Economics in Sweden. His tenure with ICANN will start officially in May 2016, but he is expected to attend the upcoming ICANN 55 meeting in Marrakech, Morocco next month.
“ICA has been directly engaged with ICANN since joining its Business Constituency in 2007, and ICA Counsel Philip Corwin currently serves as one of the BC’s two elected representatives on ICANN’s policymaking GNSO Council”, stated ICA President Jeremiah Johnston. “We happily noted Mr. Marby’s enthusiasm for assuming the CEO role, his commitment to the multistakeholder model, and his intent to build upon ongoing ICANN work processes, all evident in the remarks he made during his initial Press Conference. ICA looks forward to working with him as he guides ICANN through completion of the IANA transition and the transfer of accountability oversight from the U.S. Government to the global multistakeholder community. We also intend to make constructive contributions as the ICANN community grapples with such important policy matters as the upcoming review of the new gTLD rights protection mechanisms as well as the first-ever review of the UDRP.”
On October 13th ICA filed a formal Reconsideration Request (RR) asking ICANN’s Board Governance Committee (BGC) to rethink The Board’s approval of the renewal registry agreements (RAs) for .Travel, .Cat and .Pro. All three renewal agreements contain Uniform Rapid Suspension (URS) and other rights protection mechanisms (RPMs) drawn from the new gTLD program. Those RPMs are in the contracts largely because staff of ICANN’s Global Domain Division (GDD) started the RA renewal process by proposing their inclusion “to increase the consistency of registry agreements across all gTLDs”. ICA had previously filed comments on all three proposed RAs protesting the inclusion of the URS, as did the large majority of all those who commented.
The explanations of the Board Resolutions approving the three RAs, accomplished with no formal vote on the Consent Agenda of its September 28th meeting, contains the comforting words that “the Board’s approval of the Renewal Registry Agreement is not a move to make the URS mandatory for any legacy TLDs, and it would be inappropriate to do so”. However, it also includes the highly questionable assertion that the inclusion of the URS in the Renewal RAs is based on the bilateral negotiations between ICANN and the Registry Operator, where Registry Operator expressed their interest to renew their registry agreement based on the new gTLD Registry Agreement…and transitioning to the new form of the registry agreement would not violate established GNSO policy“.
There are two major problems with that reasoning:
As ICA explained in its RR:
“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.
… We further note that ICANN staff has just issued, on October 9th, the “Preliminary Issue Report on a GNSO Policy Development Process to Review All Rights Protection Mechanisms in All gTLDs”. This report will be considered by the GNSO Council and the ICANN community at the upcoming ICANN 54 meeting in Dublin, Ireland and, following a public comment period scheduled to end on November 30th, will result in a Final Staff report being issued on or about December 10th.
That Final Report will probably provide the foundation for the initiation of one or more Policy Development Processes (PDP) addressing whether the new gTLD RPMs should be adjusted and, more relevant to this reconsideration request, whether they should be adopted as Consensus Policy and applied to legacy gTLDs and/or integrated with the UDRP. Indeed, the Preliminary Issue Report notes (at pp.22-23):
“These [potential] issues would be specific topics to be addressed as part of their Charter by the PDP Working Group, in addition to the more general, overarching issues such as:
This passage of the Preliminary Issue Report constitutes further and new material evidence, provided directly by ICANN policy staff, that the question of whether the URS should become a Consensus Policy applicable to all gTLDs is an overarching policy matter, and that it is wholly inappropriate for GDD staff to seek imposition of it on legacy gTLDs as the starting point for registry renewal agreement negotiations because doing so creates de facto consensus policy via contract. It also identifies the presence of “transitional issues” that have in no way been considered in pressing for the inclusion of the URS in the three renewal agreements that are the focus of this reconsideration request.
Unless and until the URS is adopted as a Consensus Policy for all gTLDs, ICANN staff should not be initiating the registry agreement renewal process with any legacy gTLD by suggesting that new gTLD RPMs be the starting point for contract negotiation as, given the inequality in bargaining power, this can have the effect of making the URS a de facto Consensus Policy notwithstanding the fact that the regular order PDP outlined in and required by the Bylaws has not been followed. Such GDD staff actions make a mockery of and undermine the integrity of the GNSO’s upcoming PDP review of RPMs.ICA will continue to use all available means to assure that the policies imposed on the registrants of more than 100 million legacy gTLD domains are determined through the policymaking process mandated by ICANN’s Bylaws and not set by the whims and coercive pressure of GDD staff.”
BGC action on a RR is generally supposed to take place within 30 days of its filing. The RR process is constructed in a manner to provide multiple procedural grounds for summary dismissal without ever reaching the merits of the situation. While that unfortunate avoidance tactic could be utilized, we are hopeful that the importance of this precedent-setting situation, as well as the fact that a similar RR was jointly filed by ICANN’s Business Constituency (BC) and Non-Commercial Stakeholder Group (NCSG), will convince the BCG to do the right thing and address the RRs on their substantive merits.
And we will of course comment upon the recently issued Preliminary Report on Rights Protection Mechanisms in All gTLDs and participate in any subsequent policy development process (PDP) to ensure that RPM Consensus Policies are balanced, and respectful of the procedural and substantive due process rights of domain registrants.
Note: I first started this article in mid-September, and the opening quote from Yogi Berra was in the first draft because it seemed to fit the situation so well.. It was by sheer coincidence that it was first published on the day of his death.
Consider that my unintended tribute to a great human being. Unfortunately, it’s now over for the man who quipped “It ain’t over ‘til it’s over.” But his record and memory will never be over. R.I.P., Yogi Berra.
“When you come to a fork in the road, take it.” – Yogi Berra
The members of the ICANN community engaged in the work of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-ACCT, or just plain “CCWG” for this article) has been engaged since late 2014 in designing an enhanced ICANN accountability plan to accompany the transition of oversight of the IANA root zone functions from the National Telecommunications and Information Administration (NTIA) to the global multistakeholder community. On August 3rd the CCWG released its 2nd Draft Report (Work Stream 1) for a public comment period that closed on September 12th.
But, regardless of the overall content of those comments, one may be treated as more equal, or at least as warranting more consideration, than others – that of the ICANN Board. And the first weeks of September 2015 led the process toward a make or break it decision point, culminating in a late month face-to-face (F2F) meeting in Los Angeles, that will determine whether the ICANN community will remain unified behind strong and binding accountability measures — or will become divided and distracted, lose sight of its goals, and fumble an opportunity that will not recur again. Based on its performance to date, and to ongoing email conversations among CCWG members, the author is optimistic that the CCWG will not abandon its goals or guiding principles.
The purpose of this article is to inform members of the ICANN community as well as policymakers and other interested parties of the maneuvers and details underlying these recent and critical turns of events as we move toward the end game on determining the contours and substance of enhanced ICANN accountability.
The quest to impose substantially greater accountability on ICANN by its community is approaching a historic juncture that will decide this matter for years to come. Not altogether surprisingly, ICANN’s Board is raising major questions about the latest version of the CCWG Accountability proposal that seem to constitute a broad pushback, particularly against the Sole Membership Model (SMM) that would confer significant community powers under California law.
The major points made in this article are:
The Proper Standard of Deference
In its initial analysis of the analysis of the CCWG Proposal prepared by ICANN’s outside counsel, the two law firms advising the CCWG noted something particularly important within an exercise whose objective is to strengthen and secure the benefits of the multistakeholder model (MSM) for a considerable time going forward – “the conclusions of CCWG’s deliberative bottom-up consensus seeking multistakeholder process deserve a significant degree of deference” – including, one presumes, deference by the Board.
It is the multistakeholder community that has produced the CCWG’s accountability plan, and this entire transition exercise is in supposed defense and perpetuation of that the much vaunted MSM. So a broad rejection or reworking of the plan would be an indictment of the MSM and cited as evidence that it just wasn’t up to the task it was given. By contrast, deference to it would constitute and embrace and validation of the MSM.
The author believes that the CCWG proposal is perhaps the highest expression of the capabilities of the MSM to date, and overall a remarkable piece of work to be produced so quickly. As for the Board’s proposal, it is the product of the Board and its lawyers. It may be sincere and well-intentioned, but it is not the product of a multistakeholder process; at best it is one input to it.
Clearly, the only answer consistent with devotion to the MSM is to adopt the CCWG proposal as the baseline for further discussion and development. While individual components of the Board’s submitted Comments Matrix may improve and enhance the CCWG proposal and certainly should be considered on their merits, on the central question of whether to go with the SMM or the Board’s multistakeholder enforcement model (MEM) the burden of proof is on the Board and any other MEM proponents to demonstrate that it better enables the accountability desired by the community than the SMM. If it does not – and initial analysis finds it inferior in almost every aspect — it should be rejected, as this is no time for the CCWG to be diverted from project completion. And the project is substantially enhanced accountability.
Which Fork in the Road Will Be Taken?
How the gap between the Board and CCWG shall be bridged may come down to a question of who blinks first. Not every disagreement is subject to compromise, and the central questions of the SMM and an IRP enforced by assured judicial access seem to fall in that category.
Certainly there will be pressures and divisions on all sides.
The transition of IANA stewardship has already seen some considerable gap between the Numbers and Protocols technical communities – which are impatient for a change they already believe way overdue – and a Names community for which proceeding ahead is highly dependent on an acceptable accountability framework.
While the CCWG has strong internal consensus on its draft Proposal, there remains some internal dissent – especially on the SMM and an IRP that uses court access as ultimate backstop – and the Board may hope to exploit such divisions.
That brings us to the Board, which appears very reluctant to see the Proposal adopted in its present form – but which also must realize that any significant time devoted to reaching a mutually acceptable resolution of outstanding divisions could throw the Bylaws adoption completion date beyond the September 30, 2016 terminus of the current IANA contract term and squarely into the midst of a heated U.S. election.
Ultimately, while the Board and CCWG share many objectives, it is the CCWG as embodiment of the MSM that both are striving to save which gives it superior leverage in this accountability end game, so long as it retains cohesion behind the SMM its careful and informed deliberations have produced. For those who profess to support the MSM, the best means of demonstrating that commitment is to support the stakeholders comprising the CCWG as they move toward finalizing their SMM proposal.
We have reached a fundamental fork in the road. And now we must take it.
Note: An expanded version of this article with much greater detail can be accessed by masochistic policy wonks at http://www.circleid.com/pdf/Empire_Strikes_Back_09_2015.pdf J
ICA and its members will have a major presence at The Domain Conference, a new industry gathering being held September 26-29 at the beautiful Hyatt Regency Pier 66 Hotel and Spa in Fort Lauderdale, Florida,. The four-day event will start with two days of relaxed poolside networking overlapping with three days of highly informative sessions on the business of domaining. The Domain Industry Awards Luncheon will take place on the final day of the Conference and will feature noted journalist Ron Jackson speaking on the “State of the Industry”.
ICA Counsel Philip Corwin and other ICA members and domain industry leaders will participate in a panel on currently hot legal and policy issues for the domain industry – including:
Corwin serves on ICANN’s GNSO Council policymaking body and has just been named Interim Chair of its Business Constituency. He testified in May to the U.S. House Judiciary Committee regarding enhanced ICANN accountability.
ICA will have a breakout room during the Conference where members can gather and potential members can meet and greet. Given the great venue and the fine program we expect a good turnout and look forward to seeing you there!