ICANN’s Board meets today, and included on its Consent Agenda is approval of the revised registry contracts for .Biz, .Info, and .Org. ICA saw nothing in the proposed revisions to warrant comment – until we recently became aware that the Intellectual Property Constituency (IPC) had made the immodest suggestion that all three agreements be amended to require the adoption of Uniform Rapid Suspension (URS) at these incumbent registries after a one-sided review that would fall woefully short of a Policy Development Process (PDP). We therefore felt compelled to communicate to the Board to remind them of the underlying history of this issue.
Back in 2011 there was considerable discussion within ICANN of whether the UDRP, the only legacy ICANN consensus policy that has never been subjected to comprehensive policy review, should be. ICA was among those who urged at least such review of its procedural aspects. But others, including the IPC, opposed that step. So in December 2011 they worked within the GNSO Council to have a Resolution adopted stating that ““a [UDRP] PDP be delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months. . . to allow the policy process to be informed by data regarding the effectiveness of the URS, which was modeled on the UDRP, to address the problem of cybersquatting.” The intent of this Resolution’s proponents was quite clear – they wanted UDRP reform put on hold so that when it finally became in order they could advocate the inclusion of the URS for incumbent registries like .Com, .Net, and the three registries up for renewal now.
But the IPC, having worked in 2011 to couple potential URS adoption to future UDRP reform, has now apparently decided that is an inconvenient arrangement and would prefer to have the ICANN Board decouple them by contractual fiat. The one big problem is that there is no existing Consensus Policy providing any basis for the URS to be implemented at incumbent registries, so there is no foundation for ICANN to take such action. The 2011 GNSO Council Resolution makes clear that this is a policy issue and that the still binding declaration of the body responsible for gTLD policy matters is that requiring the URS to be implemented at incumbent gTLDs should be considered in the broader context of UDRP reform.
Aside from that fundamental lack of any policy basis for accepting the IPC’s suggestion, there is the one-sided nature of their proposed standard for triggering URS implementation – that the contracts be amended to include “a commitment to adopt the URS if, after a review of its functioning in the new gTLDs, the URS appears to be reasonably effective in achieving its objectives.” An appearance of reasonable effectiveness is a weak and vague standard for taking so serious a step as subjecting more than 100 million current domain registrants to a yet untested rights protection mechanism (RPM) with which we will have only preliminary experience for the foreseeable future. It certainly falls far short of the GNSO Council’s call for concrete data and a formal Issues Report as a basis for consideration. It appears to consider the question only from the perspective of trademark owners, absent any consideration of whether domain registrants have received adequate due process and consistent results in URS proceedings. And it would put the URS in place without any consideration of its proper relationship to the UDRP, and through a process that would again deny domain registrants of any opportunity for even procedural UDRP reform.
Commendably, while the ICANN staff Report of Public Comments did not specifically reference the 2011 Council resolution, it did state, “New RPMs affect registrants, as well as registries and registrars. They should be introduced in existing gTLDs after a bottom-up community discussion.” Based upon that response – as well as the Board’s rejection of similar proposals when .Com was renewed last year – we would be shocked if the IPC proposal was adopted. Nonetheless, we thought it worthwhile to remind the Board of the very considerable historical context surrounding this issue.
Our letter follows —
Philip S. Corwin, Founding Principal
1155 F Street, NW Suite 1050
Washington, DC 20004
August 20, 2013
Steven Crocker, Chairman of the Board
Fadi Chehade, President & CEO
Internet Corporation for Assigned Names and Numbers
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536
Re: Pending Board Action on Renewal of .Biz, .Info, and .Org Registry Contracts
Dear Chairman Crocker and President Chehade:
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, reg
istries, 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 correspondence concerns the pending renewals of the .Biz, .Info, and .Org registry contracts, all of which are on the Consent Agenda for the ICANN Special Board Meeting scheduled to take place this coming Thursday, August 22nd – and, specifically, whether the contracts should be amended to provide for the incorporation during their new term of the Uniform Rapid Suspension (URS) rights protection mechanism (RPM) without consideration of this matter through a bottom-up multi-stakeholder Policy Development Process (PDP). While initial ICANN staff response to this suggestion appears to reject it, we feel that it is important to remind the Board of the full context in which this matter should be considered, and in particular of the relevant Resolution adopted by the GNSO Council in December 2011.
The upcoming August 22nd ICANN Board Meeting will consider the renewals of the .Biz, .Info, and .Org registry agreements. The Intellectual Property Constituency (IPC) has requested that the draft renewal agreements be amended to permit future imposition of Uniform Rapid Suspension on these registries without a comprehensive bottom-up policy discussion. ICANN staff response to this request appears to dismiss it.
However, neither the IPC nor the staff response notes the most material fact bearing on this matter – the GNSO Council’s December 2011 adoption of a Resolution tying future imposition of the URS on incumbent gTLDs to a UDRP reform PDP, and specifically requesting an Issue Report on relevant considerations no later than eighteen months after the delegation of the first new gTLD. Requiring the URS at incumbent gTLDs is clearly a matter of policy, not of implementation – and the GNSO Council has clearly indicated that this future policy discussion should occur within the broader context of UDRP reform.
In response to the .Biz, .Info and .Org renewals, the Intellectual Property Constituency of the Generic Names Supporting Organization (GNSO) posted identical comments in which it proposed, under the heading of “Applicability of New gTLD Rights Protection Mechanism”, that the contracts be amended “to provide for a timely and reasonable transition to the applicable consumer protection mechanism – the Uniform Rapid Suspension (URS) system – that will be required for all new gTLDs. In particular, the .ORG renewal should incorporate a commitment to adopt the URS if, after a review of its functioning in the new gTLDs, the URS appears to be reasonably effective in achieving its objectives.”
The IPC letters go on to justify this call by noting that each proposed renewal agreement “provides for automatic renewal at the expiration of term, without changes other than those reflected in the five other largest gTLD agreements” and also “lacks the so-called “unilateral amendment” process”. It then goes on to state:
As a result, it may be impossible ever to incorporate improvements in the .ORG registry agreement, no matter how important they may be, other than through the extremely time-consuming process of enacting new Consensus Policies. This is inappropriate in the case of URS, which was adopted after extensive community input and debate, and which will be subject to a thorough review during which time the community will have an opportunity to provide further input.
Of course, it will not be impossible to require the future adoption of URS to these registries or any other legacy gTLDs if that is the consensus view of the community after engaging in a relevant PDP and establishing a new Consensus Policy. The IPC’s request amounts to a proposal to deprive the community of an opportunity to consider this matter based upon actual experience with the operation of the as-yet-untested URS at new gTLDs – and, further, to do so automatically based upon the weak and vague standard that “the URS appears to be reasonably effect
ive in achieving its objectives”. Mere appearance, and a diffuse “reasonably effective” measurement, are not sufficient grounds for altering the RPM regime for more than 100 million registrants at incumbent gTLDs.
In response to the IPC request, the ICANN staff Report of Public Comments in regard to the .Biz and .Org renewals (but not .Info, as the IPC comment was submitted during the Reply period) contains the following identical response:
Rights Protection Mechanisms
The [.BIZ/.ORG] renewal proposal does not include a requirement to comply with the Uniform Rapid Suspension (URS) rights protection mechanism (RPMs). This RPM has so far only been approved in the context of new gTLDs. The URS is new and requires a “ramp-up” period before it is able to absorb the full workload of the entire gTLD namespace. Additionally, registrants have procured domain names in existing gTLDs with an understanding of the landscape of existing RPMs. New RPMs affect registrants, as well as registries and registrars. They should be introduced in existing gTLDs after a bottom-up community discussion.
We appreciate the fact that the staff response indicates that the IPC request will not be granted in regard to the three pending contract renewals (just as it was not adopted last year when the .Com registry contract was renewed). In particular, we are gratified that the comment references the fundamental difference that registrants in new gTLDs will acquire domains with the knowledge that they will be subject to new RPMs specifically developed for them, including the URS — while registrants in incumbent gTLDs agreed to be bound solely by the Uniform Dispute Resolution Policy (UDRP), and therefore future imposition of the URS would represent a material alteration of their consensual expectations. The staff response also correctly notes that the URS “has so far only been approved in the context of new gTLDs” – in fact, there has been no relevant final policy decision on this important question, so there can be no legitimate implementation through the advance “commitment” process suggested by the IPC.
However, both the IPC request and the ICANN staff response fail to note the most material consideration that should guide any ICANN action on this matter – the December 2011 Resolution adopted by the GNSO Council making clear that any future consideration of adoption of the URS by incumbent gTLD registries should take place in the context of a PDP addressing reform of the UDRP.
That Resolution 20111215-1 states in relevant part:
Whereas, a Final Issue Report [on the current state of the UDRP] was published on 3 October 2011 (http://gnso.icann.org/issues/udrp/udrp-final-issue-report-03oct11-en.pdf) in which ICANN staff recommended the GNSO Council consider the “perspective of the majority of the ICANN community, and the advice of the Government Advisory Committee (GAC), and the At-Large Advisory Committee” and that “a PDP be delayed until after the New gTLD Uniform Rapid Suspension System (URS) has been in operation for at least eighteen months. . . to allow the policy process to be informed by data regarding the effectiveness of the URS, which was modeled on the UDRP, to address the problem of cybersquatting.”
… RESOLVED further, the GNSO Council requests a new Issue Report on the current state of all rights protection mechanisms implemented for both existing and new gTLDs, including but not limited to, the UDRP and URS, should be delivered to the GNSO Council by no later than eighteen (18) months following the delegation of the first new gTLD. (Emphasis added)
This Resolution makes clear that the GNSO Council adopted the staff recommendation that a PDP addressing procedural or substantive reform of the UDRP be delayed for at least eighteen months after commencement of the URS, which is a supplement to and modeled upon the UDRP; and that the Council requested both relevant data and preparation of a new Issue Report on the functioning of RPMs at both incumbent and new gTLDs to be delivered no later than eighteen months after the first new gTLD was delegated so that it could inform the subsequent “policy process”.
The IPC should be well aware of this Resolution since it is represented on the Council and supported it at the time of its adoption, opposing a competing Resolution that would have called for near-term initiation of a PDP on procedural UDRP reform. The clear goal of the IPC and other proponents of the adopted resolution at that time was to delay any UDRP reform until sufficient time had passed to incorporate potential imposition of the URS on incumbent gTLDs as part of any comprehensive rights protection reform package.
Yet the IPC now appears to want to bypass both the Issue Report and subsequent PDP process and obtain a commitment that the URS will be implemented at these three incumbent gTLDs absent any consideration of UDRP reforms of benefit to domain registrants and responsive to their concerns about the current administration of the UDRP. Having first delayed UDRP reform on the grounds that it should consider future experience with the URS, the IPC now apparently wants to decouple the URS from any UDRP reform process. That course might satisfy trademark interests but would give short shrift to the rights of domain registrants.
While we have no argument with effective rights protection for trademark owners, any ICANN process that considers the URS for incumbent gTLD registries must be balanced and comprehensive, and therefore must follow the course laid out by the GNSO Council in December 2011. Domains, like trademarks, are a valuable form of intangible rights, and domain registrants must be assured that any process that may result in imposing the URS on incumbent gTLDs gives adequate consideration to all perspectives, considers all relevant data and analysis, and does not simply grant the request of the trademark community while ignoring the concerns of domain registrants.
For the reasons stated above, we urge the Board to reject the IPC request for contract amendments that would permit imposition of the URS on the registries for which renewal contracts are being considered absent the relevant policy process called for by the GNSO Council in December 2011. Requiring the URS to be implemented at incumbent gTLDs should only occur after full community-wide consideration of the matter, informed by an Issue Report and a subsequent PDP that considers expansion of the URS within the broader context of UDRP reform.
We presume that the Board will follow the staff response to the IPC request and will not amend the referenced agreements as requested. However, in the event that the Board should decide to consider acquiescing to that request we believe that this is clearly a policy matter, having been identified as such by the GNSO Council, and should not proceed further until requisite steps are taken to lay the ground work for initiation of a PDP.
We hope that the ICANN Board finds our views on this important matter to be useful and informative.
Philip S. Corwin
Counsel, Internet Commerce Association
Cc: Cyrus Nazami
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