Tag Archives: Internet Commerce Association

The ICANN Policy and Decision Making Process is Seriously Flawed by Philip Corwin, Internet Commerce Association

Philip Corwin imageICANN’s policy and decision making process is supposedly based upon a bottom up, community consensus model. While we are all for careful deliberation before major policies are adopted and implementing actions are taken, we cannot support endless process for its own sake – especially when no concrete action ever results.

ICA has just filed a comment letter regarding the July 2012 Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse. We favor the concept of uniformity in related provisions of complementary contracts, and we certainly are against “registration abuse” (although we note that the most extensive study of this subject ever undertaken, by the Registration Abuse Policy Working Group, failed to identify a single registration abuse for which it recommended uniform contract language as a response). ICANN staff’s response to an October 2011 GNSO request was to recommend the initiation of yet another Policy Development Process assisted by yet another Working Group.

But the subject of registration abuse has already been under study for nearly four years and has resulted in the issuance of three separate reports totaling 212 pages! So our response to this recommendation is “Enough is enough” and that it’s time to “fish or cut bait” – especially when the proposed PDP would be unlikely to result in any final action but just more bureaucratic paper shuffling “to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse”.

ICANN’s expert and well-compensated legal staff already has more than enough information to propose draft uniform contract language for whatever registration abuses it believes are taking place, and if they think this is an important subject they should do so and put that specific language out for community comment. And if not, then discussion of this subject should be terminated.

We don’t fault ICANN staff for producing a report requested by the GNSO. But we do perceive them as weighing in for repetitive inquiry on subjects in which there is little evidence of “bottom up” community interest, and against action on subjects where there is, based upon internal organizational objectives as well as outside political pressure.

We hope our suggestion will be adopted. As for the time and effort that won’t be expended by ICANN staff and community members on yet another repetitious inquiry into a well-examined subject, we can think of one very important subject that is way overdue for review and action to which it could be devoted, and which large elements of the community have already expressed support for.

And that subject is procedural UDRP reform, with the primary objective being development of a standard contract for all UDRP arbitration providers. The UDRP is the only major ICANN policy that has never been subjected to review and reform. We believe that ICANN’s empowerment of select organizations to transfer or extinguish domains without enforceable standards and limitations is inherently subject to abuse, and that addressing it should be a high priority. That’s a discussion of uniform contract language we’d be happy to enthusiastically engage in.

ICA’s comment letter follows —


Philip S. Corwin, Founding Principal
1155 F Street, NW  Suite 1050
Washington, DC 20004


August 15, 2012

By E-mail to: uoc-prelim-issue-report@icann.org


Internet Corporation for Assigned Names and Numbers (ICANN)

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536


Re: Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse



I am writing on behalf of the members of the Internet Commerce Association (ICA) in regard to ICANN’s Comment Period on the Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse. This Comment Period opened on July 25th  and closes today, August 15th.

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.

Executive Summary

  • ICA supports the creation of a minimum baseline of registration abuse provisions for all in scope ICANN agreements, so long as such provisions are devoted solely to registration abuses and do not stray into the area of use abuses that are the proper province of national governments, law enforcement, and similar entities.
  • However, ICA opposes the initiation of yet another PDP to further extend the consideration of a subject that has already been under study for almost four years – especially when the proposed PDP would not constitute the final step in this process.
  • Overall, ICA views this issue as symptomatic of serious flaws in the ICANN policy development process in which important matters are subjected to endless study and debate without any final determination or action, and community members are asked to devote innumerable hours to participation in working groups that create reports which in turn just lead to the initiation of additional reports and working groups.
  • Rather than initiate another PDP, we suggest that ICANN’s legal staff prepare draft provisions for the relevant in scope ICANN agreements that are as uniform as possible and that address the limited number of registration abuses at issue, and that these draft provisions should be put out for comment by contracted parties as well as the ICANN community.


This Issue has Already Been Subjected to Multiple Processes that Reexamined Identical Ground and Failed to Reach a Conclusion or Result in Concrete Action

The consideration of whether ICANN should create a minimum baseline of registration abuse provisions for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse, has been under study for nearly four years.

This has already resulted in the issuance of three separate reports totaling 212 pages in length:

  • On 25 September 2008, the GNSO Council requested an issues report from ICANN Staff that resulted in the issuance, on October 29, 2008, of the 49 page

“GNSO Issues Report on Registration Abuse Policies”

  • More than one year later, in December 2009, the GNSO Council agreed to charter a Working Group to investigate the open issues identified in Registration Abuse Policies report, before deciding on whether or not to initiate a Policy Development Process (PDP); and a Registration Abuse Policies Working Group (RAPWG) was chartered in February 2009. The RAPWG issued its 129 page Final Report on May 29, 2010. (Note: I participated in the RAPWG on behalf of ICA and in affiliation with the Commercial and Business Users Constituency.)
  • More than one additional year subsequently passed until, on October 6, 2011, the GNSO requested yet another report “to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse”. That request resulted in the issuance of the 34 page “Preliminary Issue Report on Uniformity of Contracts to Address Registration Abuse” on July 25, 2012.
  • ICANN staff is now suggesting that yet another working group be formed to address this topic, stating,

Staff recommends that the Council initiate a Policy Development Process on this topic. Should the PDP proceed, Staff suggests that the working group conduct further research, as follows:

  • Understand if registration abuses are occurring that could be addressed more effectively if consistent registration abuse policies were established;
  • Determine if and how (registration) abuse is dealt with in those registries (and registrars) that do not have in place any specific provisions or policies to address abuse; and
  • Identify how registration abuse provisions, where they exist, are implemented in practice and whether they are effective in addressing registration abuse.

If the results of this research reveals that there is value in having uniform provisions to address registration abuse, the PDP WG should also consider a set of initial benchmarks for developing an initial baseline or framework of provisions to battle registration abuse, and define potential reporting requirements to track progress toward those goals.

  • If the recommended PDP was initiated and a new WG formed, it appears that it would be largely tasked with reexamining issues that have already been addressed by the prior efforts. Further, it would likely lead to yet additional study, rather than the adoption of uniform contract provisions, given that the main task envisioned for the WG would be to “consider a set of initial benchmarks for developing an initial baseline or framework of provisions to battle registration abuse”.

With all due respect, enough is enough. To the extent that registration abuses create serious problems it is inexcusable to address the issue through a hyper-bureaucratic and seemingly never-ending process that after nearly four years only seems to promise yet multiple additional working groups and reports without any foreseeable conclusion. And it is frankly abusive to request that volunteers from the ICANN community devote hundreds of additional collective hours to participation in new WGs that reexamine already examined issues and are unlikely to lead to any near-term results.

The ICANN Policy/Decision Model Compares Unfavorably to both Private and Public Sector Counterparts

ICANN is a unique organization – a non-profit sector entity making decisions with public policy implications. Yet, whether measured against private or public sector models, the ICANN policy and decision making process is clearly deficient and in need of some serious reform. We are all for careful deliberation, but only up the point where it devolves into pointless repetition of effort and the absence of any final conclusion to act or not.

If ICANN were a pure private sector entity that perceived that its various contracts with third parties required revisions to address specific issues in a uniform matter it would request that its in-house or outside counsel to prepare draft language — and such changes would likely be approved and implemented within months.

If ICANN were a U.S. government agency with a similar perspective it would issue a preliminary notice of proposed rulemaking and solicit public comment. It would subsequently issue a proposed final rule and again solicit public comment.   While the entire process would take longer than for a private sector entity, it would likely be concluded in less than two years before the final rule was implemented.

ICANN Legal Staff Should Prepare Uniform Draft Contract Provisions for Comment by Contracted Parties and the Community

The most extensive study of registration abuses was undertaken by the RAPWG. We have reviewed the entirety of the RAPWG’s May 2012 Final Report and note that it does not identify a single registration abuse for which it recommended alterations of ICANN contract language. We cannot imagine any successor WG unearthing new registration abuses or making alternate consensus recommendations.

On the precise subject of Uniformity of Contracts, the RAPWG made the following recommendation (which had strong support but also significant opposition):

The RAPWG recommends the creation of an Issues Report to evaluate whether a minimum baseline of registration abuse provisions should be created for all in-scope ICANN agreements, and if created, how such language would be structured to address the most common forms of registration abuse.

That Issues Report was undertaken and is the document that is the focus of this comment letter. As that Report notes:

Earlier reports on this topic (see October 2008 Issues Report and the RAPWG Final Report), describe the lack of uniformity of abuse provisions among the currently delegated gTLD registry agreements, as well as the absence of specific abuse provisions in the Registrar Accreditation Agreement (RAA). Across the spectrum of existing registry agreements, there are elements of similarity but each contract (currently) is customized to the uniqueness of the respective registry’s business model and operating conditions.

Clearly, the work required to identify existing anti-abuse provisions in relevant contractual agreements, and the lack of uniformity thereof, has already been done and there is no need or justification for revisiting that subject. ICANN staff, in preparing the July 2012 Preliminary Issues report, already surveyed a variety of existing contracts to analyze the extent to which registration abuse was addressed and whether that was done in a uniform manner.

ICANN is the contracting party for all four of the contract types implicated – Registry Agreement (RA), Registry-Registrar Agreement (RRA), Registrar Accreditation Agreement (RAA), and Registration Agreement (RtA). And ICANN has a highly qualified and well compensated legal staff, as well as access to prestigious outside counsel.

We can see little potential gain from the initiation of a new PDP and the establishment of yet another WG on this subject, and do not believe the community should again be asked to expend countless hours on something that has already been exhaustively examined. ICANN has more than enough information to proceed if it believes that uniform contract provisions to address registration abuses should be developed. In our view, the proper next step, if there is to be one, is to have ICANN inside and/or outside counsel develop proposed such proposed draft language and thereby provide potentially affected contracted parties, as well as the overall community, with concrete draft provisions to focus their comments on.

In the absence of such proposed contractual language, the entire subject should be dropped rather than embark on yet another chapter of a seemingly never-ending process that does not result in conclusive action.


ICA appreciates this opportunity to file this reply comment regarding Uniformity of Contracts to Address Registration Abuse.

As stated above,  while we support the concept of such uniform contract language we believe that after almost four years of inquiry into this subject it is time to “fish or cut bait”. We therefore cannot support the initiation of yet another PDP and the creation of a related WG. ICANN legal staff has more than enough information to prepare proposed draft contractual provisions for public comment. They should either do so, or further consideration of this entire matter should be terminated.

Thank you for considering our views in this matter.


Philip S. Corwin

Counsel, Internet Commerce Association

This post by Philip Corwin, Counsel, Internet Commerce Association, was republished with permission and was originally published at internetcommerce.org/Registration_Abuse_Time_to-Fish_or_Cut_Bait

Judiciary Committee Leaders Ask ICANN for Further Details on New gTLD Program by Philip Corwin

Internet Commerce Association logo

The Chairmen and ranking minority members of the U.S. Senate and House Judiciary Committees have sent a letter to ICANN requesting “further details about the steps ICANN is taking to fulfill its commitment to ensure that the New gTLD process will provide “a secure, stable marketplace” with input from “the community as a whole.” The August 7th letter and an accompanying press release can be found at www.leahy.senate.gov/press/expansion-of-internet-domain-names-protects-consumers-and-trademark-holders.

The letter raises a series of questions about ICANN efforts to raise public awareness of the new gTLD program and the availability of the public comment period, as well as the possibility of extending that period [Note: that comment period is currently scheduled to close on August 12th, but during a webinar conducted this morning ICANN staff indicated that requests for a 30-day extension received from such groups as the Intellectual Property and Business constituencies will likely be granted]. It also inquiries about the specific role of the Independent Objector.

The letter also reiterates concerns “that inadequate protections may provide increased opportunities for cyber-squatters and other rogue actors to mislead consumers by registering fraudulent websites that incorporate familiar trademarks” and suggests that the Trademark Clearinghouse (TCM) be retained as a permanent protective feature rather than just be operational for the first 60 days of a new gTLD’s operation — and that consideration be given to having the TMC warning system go beyond exact matches by “allowing trademark holders to sign up for Clearinghouse notices of website registrations that contain their trademark in varied form (such as the trademark plus a generic term)”. It is not clear from the letter whether the signatories believe that registrants should automatically receive a warning of potential infringement when a domain combines a generic and trademarked term (which may often be a legitimate, non-infringing use), much less whether the reference to “varied form” also involves typographical variations and, if so, to what degree.

Other issues raised in the letter include the timing of ICANN post-launch review, registry pricing practices for “sunrise” registrations, to what extent ICANN will utilize some of the $350 million in new gTLD application fees for enhanced contractual compliance, and the status of negotiations to revise the Registrar Accreditation Agreement (RAA). The letter makes no mention the other required rights protection mechanism, Uniform Rapid Suspension (URS).

While not setting a deadline for response, we imagine that ICANN will reply to this inquiry in fairly expedited fashion. With the completion of new gTLD initial evaluations not expected until mid-2013, this inquiry might well be a precursor to additional oversight hearings being held in advance of the launch of the first new gTLDs, which ICANN currently projects taking place in the first quarter of 2014.

This article by Philip Corwin from the Internet Commerce Association was sourced with permission and originally published at internetcommerce.org/Judiciary_Letter_New_gTLDs.

New gTLDs to be Delayed until Third Quarter of 2013 as ICANN Abandons Evaluation Batching and Seeks Input on Delegation Metering – Provides Additional Time for Open and Transparent URS Implementation by Philip Corwin

Philip Corwin imageOn July 29th ICANN announced that it is inclined to process all of the 1,930 new gTLD applications in a single batch, and that the results of the initial evaluations of all applications will probably be released around June to July of 2013, stating:

The current plan indicates that initial evaluation of all applications, processed in a “single batch”, can be completed in 11-12 months, possibly less – resulting in publication of results in June-July 2013…For applicants, releasing results in a single batch would mean that the first delegations would occur in late third quarter of 2013, six months later than originally expected.

ICANN had previously proposed to utilize a “digital archery” process to determine the batching order of applications, with applications in the first batch projected to begin delegation to the root in the first quarter of 2013. However, ICANN abandoned the digital archery concept just prior to its Prague meeting due to both technical problems as well as substantial criticisms.

ICANN’s announcement also invited comment from the community by August 19, 2012 on three separate questions related to the fact that considerations of technical stability of the DNS require that no more than 1,000 new gTLDs be delegated within a single year (about 20 per week). In addition to technical considerations, the announcement also makes clear that ICANN is deferring to the Governmental Advisory Committee (GAC), which advised it just prior to the Prague meeting that it would not be in a position to provide any early warnings on particular gTLD applications until after the October meeting in Toronto, and would not provide consensus advice on contentious applications until after the Beijing meeting scheduled for April 2013. [The GAC also recently announced that it would establish an internal process through which applicants and other interested parties could brief the GAC on particular applications – see http://www.internetcommerce.org/GAC-gTLD_Briefings]

As evaluations continue, it is possible that some applicants will drop out and seek a partial refund of their $185,000 application fee (70% for withdrawals up to the release of evaluation results) and/or combine their efforts with other applicants seeking the same string. It is also likely that some applications will proceed on a slower track due to negotiations with ICANN legal staff for a non-standard registry contract, or due to string contention, or objections and extended review. And some applicants who have primarily defensive aims may volunteer to be delegated in the second year. Nonetheless, it remains likely that more than 1,000 applications will be ready for delegation at the same time, and that fact combined with DNS stability considerations results in the need for agreement on some form of “metering” to control the delegation process. As the announcement states:

While there will be some natural smoothing as applications take different paths through objections and contention resolution processes, there will still be a requirement for some method of metering applications into the delegation process. This is due to the relatively high number of applications that may reach pre-delegation steps at essentially the same time. A metering method has not yet been determined and will need to be developed.

ICANN’s original digital archery proposal contemplated application batching in a way that favored balance between its five geographic regions; it is unknown whether that concept will be carried over to delegation metering. In addition, it is expected that some parties will favor giving delegation preference to certain types of applications – the various types include IDN, community, geographic, generic, and brand.

The six-month delay may also result in an extension of other related processes. For example, parties planning to object to an application can now do so beyond the 7-month objection period, as the Applicant Guidebook also provides for a two-week window after the announcement of evaluation results (however, the comment period on applications will still close in less than two weeks, on August 12th). And, while there are 1,930 separate applications, the largest part of each of them relates to back end technical plans and there are only about 40 separate technical platform providers to be considered in conjunction with all applications, which may permit some speedup in the process.

The delay also provides more time to work out implementation details of the two required rights protection mechanisms (RPMs), the Trademark Clearinghouse (TMC) and Uniform Rapid Suspension (URS). ICA believes that this additional time will facilitate community discussion of how the URS goals of providing a quick and less expensive UDRP supplement for clear-cut and incontrovertible cases of cybersquatting can be implemented in a manner that preserves essential registrant due process rights, and again urges ICANN to delegate staff support to an open and transparent implementation advisory group so that initial results can be reported in Toronto.

The announcement closes by asking all who submit comments to specifically address three related questions related to delegation metering. That comment period closes on August 19th. The ICA is presently considering whether it will file comments as well as what their content may be.

The complete announcement is available from:

This article by Philip Corwin was originally posted on the Internet Commerce Association website here and is republished with permission.

GAC Internal Process for Briefings by New gTLD Applicants and Other Interested Stakeholders Raises Multiple Process and Timing Questions by Philip Corwin

Philip Corwin imageby Philip Corwin from the Internet Commerce Association

ICANN has its own internal politics, as we’d expect for any organization having important duties and serving, and subject to input from, multiple constituencies. Those internal politics and “Capital P” politics intersect at its Governmental Advisory Committee (GAC). The GAC’s advisory role assumed more prominence under the Affirmation of Commitments (AOC) entered into upon U.S. relinquishment of direct ICANN oversight, and the GAC took that bit in its teeth as the new gTLD program was developed and it became the unofficial complaint department for many concerned by the prospect of imminent legions of new gTLDs.

In a new posting at its website the GAC revealed that it has already received “a number of requests from applicants or other interested stakeholders to brief or provide briefing material to the GAC” and that, “An internal process for handling requests and tracking materials is being put in place.” (https://gacweb.icann.org/display/gacweb/GAC+New+gTLD+Processes) It is not clear how these requests were communicated to the GAC, which consists only of its members and a Secretariat. Nor does it reveal which gTLD applicants were seeking a GAC briefing and whether the purpose was to bolster their own applications or to denigrate those of competitors; or what assistance or actions the “other interested stakeholders” were seeking. However, this notice does indicate that the GAC intends to play a fairly active role in vetting and taking positions relating to new gTLD applications, and is so open to receiving input from both applicants and other parties that it is establishing a dedicated process for handling that. In turn, this Capital P political involvement may well contribute to further delays and subjective alterations of the application evaluation and string delegation process – a process that, regardless of what one thinks of specific evaluation and objection criteria, has been designed by ICANN to be evenhanded and predictable.

Those seeking to sway the GAC in regard to both individual applications and overarching policy will need some political connections to make their case, as the notice also states that, “Briefings for the GAC will only be scheduled on a best-efforts basis and entirely at the request of GAC members.” (emphasis added) In other words, the GAC as a whole will only consider briefings that have been requested by one or more of its individual nation-state or international governmental organization (IGO) members. It is also not clear whether these briefings would be face-to-face during (almost always closed door) GAC sessions at ICANN meetings, or would be facilitated by telephonic or video conferencing between ICANN meetings for interested GAC members.

As the GAC’s own website reveals, while membership is open to all national governments it is nonetheless and self-selectively composed of a substantial minority of the world’s nations. The United Nations’ membership presently consists of 193 nations, but the GAC is presently composed of “approximately 50 national governments, distinct economies, and global organisations such as the ITU, UNESCO, the World Intellectual Property Organisation (WIPO), INTERPOL and regional organisations such as the OECD, Asia Pacific Forum, and Council of Europe”; that is, only about one-quarter of all nations participate in the GAC. (see https://gacweb.icann.org/display/gacweb/About+The+GAC) This raises the possibility that an applicant based in a nation that does not so participate will have no opportunity to seek briefing support from a sympathetic home nation GAC member. There is also the possibility that a GAC decision will be made by a minority of its minority of nations membership, as its Core Principles establish that a quorum for a meeting at which decisions are made need only consist of one-third of its members with voting rights (see ‘Principle 40’ at https://gacweb.icann.org/display/gacweb/Core+Principles). This means that GAC consensus may actually just represent consensus among 14 or 15 voting members.

The GAC has been quite active in providing advice to ICANN staff and Board during development of the new gTLD Applicant Guidebook (AG) (see https://gacweb.icann.org/display/GACADV/GAC+Register+of+Advice). Unfortunately, some of that advice has consisted in parroting the never-ending demands of trademark interests to substantially alter adopted consensus recommendations on new gTLD rights protection measures (RPMs) achieved through ICANN’s multi-stakeholder process. This has resulted in several Board alterations to Uniform Rapid Suspension (URS), including a one-week reduction in registrant response time and a halving of the number of disputed domains required to trigger a “loser pays” requirement. This advice on IP policy for new gTLDs, which generally sought to override the consensus policy recommended by the STI-RT and unanimously adopted by both the GNSO and the ICANN Board, was apparently influenced primarily through closed door meetings held between corporate trademark interests and their national GAC representative and other affiliated government officials. Additionally, WIPO is a permanent member of the GAC and has been unremittingly hostile to the current new gTLD RPMs, to the point where it recently advised ICANN that it would not even host a Geneva “Summit” on URS reconfiguration unless the Board agreed to its desired policy outcome in advance (see internetcommerce.org/WIPO2ICANN_URS_Summits). Advocates for balanced IP policies that promote fair use and respect registrant rights have no dedicated spokesperson within the GAC.

In addition to providing advice on individual applications and the overall new gTLD process, the GAC also has the authority to register a consensus objection to a particular string – and ICANN’s Board has indicated that as a general rule it will not allow such strings to be delegated over GAC objections.

Overall, GAC advice and objections must be regarded as the one point in the new gTLD evaluation and objection process in which objective rules and standards can be overridden as political pressure is brought to bear.

The GAC’s willingness to invite briefing input from parties able to secure the support of at least one GAC member raises some challenging related questions:

  • The first involves transparency of process and evenhanded due process. ICANN has been maintaining an open and cumulative list of comments submitted in regard to new gTLD applications (see https://gacweb.icann.org/display/GACADV/GAC+Register+of+Advice) As noted, while the GAC notice refers to requests it has already received from applicants and other interested stakeholders it does not reveal the number of such requests nor their source, so whatever has occurred to date has been non-transparent. We can presume that lobbying-type contacts in national capitals with GAC member government officials having ICANN-related responsibilities, and seeking their support for a GAC briefing, will not generally be revealed – nor is it clear that any subsequent briefings that result will be publicly noticed, much less open to observation. There is also the unanswered due process question of whether a particular gTLD applicant, or other parties who might be affected by the requests made of the GAC in such a briefing, will have any advance opportunity to learn of it much less be afforded an opportunity for response. Evenhandedness should surely require that if GAC members have agreed to a briefing directed against a particular string or applicant, or in favor of altering a policy contained in the current AG, that those parties who may be adversely affected by the resulting GAC decision be notified of the briefing decision and afforded an opportunity to present their side of the story prior to any GAC decision-making. Past GAC practice highlights the need for such due process protection, as the GAC advice on altering RPMs was delivered with no advance notice and with no opportunity to hear a narrative different from that presented by brand owners and WIPO. Additionally, the GAC gets a grade of Fail on its transparency record – notwithstanding the provision of the preamble to its Core principles that “ICANN’s decision making should take into account public policy objectives including, among other things: …transparency and non-discriminatory practices in ICANN’s role in the allocation of Internet names and address”, every single meeting of the GAC at the recent Prague ICANN meeting (other than joint meetings with other ICANN constituencies) was closed off to the general public –  its internal operations are opaque and secretive.
  • The second involves the timing impact of substantial GAC involvement on string evaluation/delegation. In a June 17, 2012 letter to ICANN  the GAC advised that it would be following its own slower process – and did not plan to issue any “Early Warnings” on potentially objectionable new gTLDs until shortly after the October 2012 meeting in Toronto. Even more tellingly, it stated that it will not be in a position to offer any more advice on the new gTLD program during the remainder of 2012, and did not expect to finish internal considerations of the implications of providing GAC advice on applications until after the April 2013 Beijing meeting. (see https://gacweb.icann.org/download/attachments/1540128/GAC+Letter+to+Steve+Crocker_New+gTLD+Appliation+Processing_20120617.pdf?version=1&modificationDate=1341945307000)That letter does not provide any target date for when the GAC will actually be ready to offer advice on new gTLDs, and the more briefings it entertains the more distant that date may be. (Note: This June 17th notification seems to be at some odds with point number 6 in the preamble to GAC Core Principles, “The GAC commits itself to implement efficient procedures in support of ICANN and to provide thorough and timely advice and analysis on relevant matters of concern with regard to government and public interests.”) (emphasis added)
  • The third but perhaps most important consideration is the introduction of capital P politics into an evaluation process that strives to be neutral and objective in its treatment of applicants – particularly if one applicant for a particular string is lobbied against by another applicant for the same string in an attempt to secure GAC intervention to avoid the auction process that ultimately settles such matters when competing applicants do not combine efforts or drop out. GAC briefings will only occur when supported by one or more GAC members, and the access to and ability to convince them to request a briefing will depend to one degree or another upon domestic political connections. In turn, GAC intervention for or against a particular applicant may also be seen as politically motivated regardless of related material issues.
  • The final consideration is ethical, is again tied to the insertion of politics into the advice and objection process, and involves potential conflicts of interests among GAC members. In this regard, it is instructive to note that the GAC’s Prague communique calls upon ICANN’s Board “to proceed urgently with all the necessary steps to implement an effective and enforceable ethics and conflicts of interest policy, to strengthen ICANN governance framework both in the context of the new gTLD process and in all other areas of its activity”. (https://gacweb.icann.org/download/attachments/4817665/FINAL_GAC_Communique_20120628.pdf?version=1&modificationDate=1341180014000) If the GAC is so concerned (and rightly so) about the ethics of ICANN’s Board and senior staff, particularly as it relates to the new gTLD program, then what if anything it is prepared to do about the quite significant potential for actual or perceived conflicts among its members when one of them champions a briefing and subsequent GAC consensus action on behalf of a particular party which has special ties (including substantial financial support of, or family or business connections to) to the relevant government or IGO – or when  one GAC member agrees to back another’s briefing request in exchange for support of its own favored applicant or stakeholder?

While we cannot at this time project the total number or types of requests for GAC briefings that may ensue under this invitation to provide input, we can envision at least the following potential categories of GAC briefing requests:

  • One applicant seeking special support for its bid for a contested string or to impugn the qualifications of another applicant for the same string.
  • A community applicant seeking to shore up the bona fides of its auction-avoiding community status against that of commercial applicants for the same string.
  • Input from one or more applicants seeking to raise antitrust/competition issues against other applicants based upon their current dominant position in search, e-commerce, or related Internet activities — or even just based upon the total number of applications they have submitted.
  • Input from an applicant who may be concerned that one or more interests is working with the GAC to oppose one or more of its applications, and who wants to be sure that its side of the story is heard before any GAC advice or objection is rendered (especially in the potential absence of a transparent GAC process that assure evenhanded briefings).
  • Input from trademark/brand interests seeking to block particular strings on alleged grounds that they will be compelled to make large numbers of otherwise unwarranted defensive registrations; or to reopen the AG’s RPMs, focusing in particular on reconfiguration of the URS to convert it from a narrow substitute for the UDRP into a low-cost substitute.
  • Input from other parties seeking GAC support for objections against or the advocacy of special conditions being placed upon particular strings, or the reopening and reconsideration of key policy and administrative components of the AG.

We wish to be clear that we are not saying that new gTLD applicants or other parties should be barred from communicating with the GAC and its individual members, or that GAC involvement in the new gTLD application process is illegitimate or unwarranted. The GAC has a valid claim to fulfilling its advisory role to whatever extent it deems suitable and appropriate. ICANN’s Board has already noted that it will be sensitive to GAC concerns, and political realities reinforce such a posture. But the GAC’s role should be handled in a transparent manner, with associated safeguards, which inspire confidence rather than raise fairness and objectivity questions.

What we are saying is that by announcing its establishment of a dedicated internal process for consideration of multiple briefing requests and the tracking of related materials, the GAC is setting itself up to a degree as a separate and parallel evaluation forum — and that forum may well be perceived as a venue in which various objective AG criteria can be circumvented, and that such perception may in turn lead to a very considerable number of attempts to secure GAC briefings.

We don’t know whether the GAC will ultimately agree to briefings and subsequent consensus advice or objection in a handful of instances or in scores of cases. But we do think that the possibility of such extensive GAC involvement raises concerns relating to transparency and due process, effect on program timing, plus related ethics and conflicts issues related to politically driven action — and that at this time we have no idea whether or how such concerns may be addressed. Therefore, we hope that the GAC will address these important concerns prior to scheduling any briefings, much less dispensing any advice or objections based upon them.

This article by Philip Corwin from the Internet Commerce Association was sourced with permission from internetcommerce.org/GAC-gTLD_Briefings.

ICANN Staff Background Paper Catalogues Extreme Dangers to Registrants of URS Reconfiguration by Philip Corwin

Philip Corwin imageby Philip Corwin, Internet Commerce Association

Last week we became aware of an ICANN staff document, “Briefing Paper on Defensive Registrations at the Second Level”, prepared just in advance of the Prague meeting (available at gnso.icann.org/en/correspondence/defensive-registrations-briefing-paper-04jun12-en.pdf). While not the intended purpose, this document reveals much about what is wrong with ICANN’s internal policymaking processes, as well as the substantial danger to registrant rights posed by any “Summit” or other event convened for the purpose of “reconfiguration” of the Uniform Rapid Suspension (URS) rights protection mechanism required for all new gTLDs.

A Process without End

To understand the flawed policy process that this memo reveals, one need only review this background information justifying the promulgation of the staff memo –

In response to the DOC letter and right holder concerns, ICANN conducted a public comment period (closed on 20 March) on the perceived need for defensive applications at the top level in addition to the existing protections for established legal rights that are available, and how this perceived need might be addressed. Although the public forum requested community input on the perceived need for defensive applications at the top level, many of the submitted comments focused on protections at the second level.

Given the effort and thoughtfulness of these comments, ICANN wanted to capture the concerns and issues raised by the community in relation to defensive registrations at the second level. On 12 April 2012, the ICANN Board’s New gTLD Committee adopted a resolution directing the staff “to provide a briefing paper on the topic of defensive registrations at the second level.”1 This briefing paper is being submitted to the GNSO to facilitate a GNSO decision of whether further policy discussions are warranted to address this issue and/or the protections in second-level registrations. (Emphasis added)

Let’s put what happened into plain English: ICANN conducted a public comment process early this year on the subject of defensive registrations at the top level of new gTLDs, in part spurred by a letter from the Department of Commerce (DOC) expressing concerns that had been fed into DOC by parties who generally opposed the entire new gTLD program. Once that process was open, various trademark groups who had never accepted the final details for the Trademark Clearinghouse (TMC) and the URS as worked out through ICANN’s much-vaunted multi-stakeholder consensus process misappropriated the comment period to once again push for second level changes that had been previously rejected by the STI-RT, the GNSO, and ICANN’s Board (with the final  Board rejection being to proposals from the Governmental Advisory Committee (GAC), itself under intense lobbying  pressure from these TM interests).

ICA responded to that comment process hijacking attempt with its own letter (see internetcommerce.org/Defensive_Registrations_Second_Level) in which we urged ICANN to resist this transparent pressure:

Nonetheless, certain trademark interests abused the comment period to request substantive changes in and additions to new rights protection mechanisms (RPMs) at the second level, including alterations of Uniform Rapid Suspension (URS) that would render it a cut-rate alternative to the Uniform Dispute Resolution Policy (UDRP) at the expense of cheapening registrant rights. These commentators are seeking to have a fifth bite at the policy process apple in regard to second level protections…There is an initial group of suggestions that we oppose both on substantive grounds and because their addition now, after the first application round has commenced, would make material changes in the program and are not mere technical implementation details. Any such changes of this nature should be made only on the basis of experience with the first round – and then only through ICANN’s multi-stakeholder process with the requirement of Board approval.

Rather than just rejecting these attempts to once again scuttle the URS consensus model, the Board’s New gTLD Committee (consisting of non-conflicted Board members) inexplicably took them seriously and directed staff to prepare the briefing paper, which in turn was forwarded to the GNSO policymaking body for gTLDs so that it can discuss whether it should renew discussions on this thoroughly digested subject.

In May, when we learned of the Resolution requesting the staff paper, we made this comment (internetcommerce.org/URS_Redux%3F):

But we’ve learned that we often perceive things differently than ICANN’s staff, which also declared in the past year that procedural UDRP reform was such a sensitive and highly charged topic that it would be too destabilizing to even discuss it for the next several years, when we thought we had detected a clear community consensus in favor of starting that process now and not in mid-2014.

Any reopening of the issue of defensive registrations at the second level of new gTLDs will likely focus on altering the URS, since the draft implementation model for the Trademark Clearinghouse (TMC) was completed and circulated on April 13th and will likely be finalized in May…One of the highest priorities for some trademark interests has been to turn the URS into a bargain basement priced, rough justice substitute for the already flawed UDRP…

Summing up, what has happened here is that, for no discernible reason, the New gTLD Program Committee has issued a staff directive and a GNSO request that could well lead to reopening one of the most divisive issues of the entire new gTLD program…

We don’t have any idea where this Resolution will lead – like so many ICANN processes it may go nowhere, slowly. But we are disturbed that trademark interests who abused the comment period on defensive registrations at the top level have now apparently been rewarded with the prospect of reopening the second level debate. (Emphasis added)

So there are three important lessons here:

  1. If you ignore the proper scope of matters addressed in ICANN public comment periods and abuse the process to once again raise previously rejected suggestions you will be rewarded with a staff paper and a suggestion that time once again be expended to revisit your rejected suggestions.
  2. ICANN has no standard procedure for shutting down policy processes which have clearly run their course, and which should be put on extended hold until new facts arise that justify a renewed inquiry.
  3. Trademark/brand interests can string out the policy process as long as they wish, engaging in a war of attrition in which ICANN, having improvidently reopened what should be closed matters, puts itself in a position of being pressured to make yet further concessions. Registrants, on the other hand, are rebuffed when they suggest that UDRP procedures might be reviewed after more than a decade of usage because any such inquiry would be too unsettling to the ICANN community.

A URS That Guts Registrant Rights

Let’s now turn to that section of the staff paper that lists TM interest suggestions for “improvements”:

URS – 1) Establish a transfer remedy and a lower “preponderance of the evidence” standard of proof; remove any requirement that a URS provider make any substantive determination about how a trademark owner is “using” its mark. 2) Implement a “loser pays” model to all URS proceedings regardless of how many domain names one registers in bad faith. 3) Reduce the filing fee to make it a relatively inexpensive mechanism (e.g., $300-$500). As an alternative, if the URS cannot be offered at this price range, then ICANN should consider having its registrars implement a notice and takedown process.

Let’s look at each in turn:

  1. 1.    This would lower the complainants’ burden of proof to the same standard that now exists for UDRP filings, and also provide for transfer of the domain as a remedy. This would convert the URS from a narrow substitute for the UDRP to a cut-rate alternative with considerably less in the way of registrant protections – which has been the goal of many TM interests all along, to be followed by foisting this unbalanced system on .com and other incumbent gTLDs. If they were to ever achieve it they could then block balanced UDRP reform from ever happening, since they would have obtained all the “reform” they could ever dream of. Lowering the threshold for a valid trademark claim would also further the likelihood of abusive complaints.
  2. 2.    A “loser pays” model for even a single domain would just intimidate most registrants, primarily individuals and small businesses, from contesting any URS complaint brought against them by large, deep-pocketed brand interests. A little history is useful here – in April 2011 ICANN adopted a “loser pays” model for registrants having 26 or more domains in dispute (see internetcommerce.org/ICANN%E2%80%99s_Latest_gTLD_Guidebook_Issued): A limited “loser pays’ model has been adopted – but it is not the “loser pays” model the GAC was pushing for. That would have placed the entire financial burden on a losing registrant for all fees related to the URS as well as the complainant’s legal fees. This model would require registrants who face a complaint listing 26 or more disputed domain names simultaneously to deposit a “Response Fee”, the amount of which is unspecified other than that it cannot exceed the filing fee charged to the complainant. This Response Fee goes to the prevailing party, so in essence this is an administrative fee charged to a registrant who has just over two dozen names in contention simultaneously via a single complaint. Succumbing to later pressure, the threshold was knocked down by the Board in June 2011 (see internetcommerce.org/node/276): The threshold for a “loser pays” requirement was lowered from 26 to 15 domains in a single URS proceeding. The TM lobby, which should be happy that it got a “loser pays” option included in the URS for serial cybersquatters, instead wants to make it a general rule to scare off registrants regardless of the validity of their single domain registrations.
  3. 3.    We have known for at least a year that a $300-500 filing fee for the URS model we now have, which contains some decent due process protection for registrant rights, is just not realistic. Yet ICANN has done no discernible analysis of how various elements of the URS affect its costs for the purpose of effecting efficient process changes that don’t reopen policy controversies, nor has it put out an RFP that could be responded to by a broader array of qualified arbitration providers than the usual suspects at WIPO (which has made clear its hostility to the current URS) and NAF (which is offering a $1300 suspension process at .XXX and may be reluctant to undercut that pricing with a less costly URS). So we again urge that ICANN establish and open and transparent implementation group to grapple with these questions so that the failure to have a settled URS in place does not become an obstacle to timely launch of new gTLD delegations next year. As for a “notice and takedown” being imposed on registrars, that concept may be worthy of discussion if and when we ever get a UDRP reform process going – but given the difficulties with both RPM implementation and the ongoing Registrar Accreditation Agreement (RAA) negotiations, introducing this concept at this time would only further complicate matters.

Let’s be clear – any URS reconfiguration process premised on the notion that it must meet an unrealistic price target will consider all the terrible ideas listed above because eliminating registrant due process rights is the one sure way to get a cheap, and cheapened, URS. That strategy fits right in with WIPO’s suggestion, as a pre-condition for hosting any URS “summits”, that ICANN’s Board commit in advance to a “respondent-default basis without panel, subject to appropriate safeguards” – which means that any registrant failing to file a response within the truncated 14-day response time would automatically lose, without any examiner ever reviewing the initial complaint to see if the rights holder actually possessed rights and if the complaint presented a prima facie case of TM infringement by a preponderance of the evidence. References to ‘appropriate safeguards” in this context are just ludicrous – the only real registrant safeguard is to have each complaint reviewed by a neutral and competent IP attorney. (Note: The STI-RT URS model provided a 20-day time period for registrant response, but in September 2010 ICANN’s Board unilaterally reduced that to 14 days under TM interest pressure.)

Summing up, any URS Summit holds the real prospect, if artificially low pricing is the paramount objective, of producing a revised URS that is the functional equivalent of the UDRP – but at a fraction of the price, and with a much shorter registrant response period, a “loser pays” requirement for even a single domain in dispute, and no examiner involvement in default cases where the registrant does not file a response within 14 days.

The TM community’s agenda has been well documented by ICANN staff, and no one should be surprised to see them push hard for these goals if ICANN is reckless enough to reopen settled URS policy instead of implementing the consensus policy that now exists.

A Flawed Recommendation

The staff paper concludes with a suggestion “that the GNSO Council consider utilizing one of its available processes such as requesting an Issue Report or conducting a policy discussion to address the issue whether additional work on defensive registrations at the second level should be undertaken”. In other words, the GNSO should reopen what should be a closed policy matter.

We believe that recommendation is deeply flawed and have an alternative suggestion – the GNSO Council should tell the Board New gTLD Committee and TM interests that the original URS model produced by the STI-RT has already been altered in many fundamental ways under relentless pressure from those TM interests who pay lip service to the multi-stakeholder process but do not respect its results, and that further changes will not be considered until new gTLDs are up and running and we can gather actual experience of the extent of TM abuse and the effectiveness of the current RPMs.

The priority now should be to implement the existing URS model. That implementation should be accomplished by an open and transparent Implementation Advisory Group (IAG) operating in much the same way as the IAG that has done so much effective work on the Trademark Clearinghouse (TMC).

In sum, it’s way past time to call a halt to the RPM policy tinkering process, as well as way past time for  the initiation of URS implementation. A successful new gTLD program cannot be built upon an altar of eviscerated registrant rights.

This article by Philip Corwin of the Internet Commerce Association was sourced with permission from:

Daily Wrap: WIPO’s Draconian Cybersquatting Desires And Africa’s Paltry gTLD Applications

“Domain name owners who do not respond to cybersquatting complaints could automatically have their domains suspended, if the World Intellectual Property Organization gets its way,” reports Domain Incite.

The story comes from ICANN documents released following a request from the Internet Commerce Association and the documents relate to the Uniform Rapid Suspension policy, which will be binding on all new gTLDs.

In ICANN’s recent generic Top Level Domain expansion, there were four geographic applications from the African continent along with a few applications for brands such as M-Net and MultiChoice, for a “paltry” total of 13 gTLDs in English writes Howard Rybko, CEO of the South African Web design and content management company Syncrony in Tech Central.

WIPO to ICANN: On URS “Summits”, It’s Our Way or the Highway by Philip Corwin, Internet Commerce Association

Overview: Timely implementation of the URS, a required RPM for new gTLDs, is critical to the success of the program as well as to the adequacy of registrant rights – for now just at new gTLDs, but with its possible extension to incumbent gTLDs sure to be a subject of future debate.After noting that ICANN’s draft FY 13 budget called for budgeting $175,000 toward two undefined URS “Summits” for the purpose of “reconfiguration” of the present URS model, ICA filed a document disclosure request seeking background information on this earmark, and particularly to find the data and analysis justifying the conclusion that the current URS policy – adopted unanimously by ICANN’s Board after two years of multi-stakeholder debate – cannot meet the desired price target and therefore must be reopened.ICANN responded to our request within their thirty day response period with just minutes to spare. Unfortunately, what they disclosed arrived just after the end of the Prague meeting, so it could not inform the URS implementation discussions there.Our key take-aways from the disclosed documents are:

  • Most of the information we requested does not exist because virtually no planning has occurred for the “Summits”, which is just a placeholder term.
  • ICANN envisioned the “community discussion” facilitated by the Summit process as taking place in Geneva, Switzerland under the auspices of WIPO, which is headquartered there. Geneva is one of the most expensive cities in the world; most of the budget request would go toward staff travel and the hiring of a “professional facilitator” to develop a revamped URS Model.
  • The relevant Business Case Data Sheet does not include any role for the GNSO Council between development of a revamped URS Model and the solicitation of providers through an RFP, notwithstanding the clear potential for adoption of major URS policy changes.
  • It is not clear whether participation in the Summits is envisaged as open to all or limited to select invitees – in any event, the Geneva location and associated costs would tend to skew participation toward well-funded brand/trademark interests.
  • WIPO advised ICANN in mid-April that the Summits proposal “does not inspire confidence on WIPO’s part in our hosting a URS session at this stage.” It went on to say that it wanted “fundamental changes” based on its long-standing positions on elements of a rapid suspension process, adding, “We would consider an express prior commitment to such a shift, including the requisite Board support, as a pre-condition to a fruitful meeting on the URS.” In other words, WIPO wants the URS model results of the multi-stakeholder process replaced by its mono-stakeholder dictate, and won’t agree to host any “Summits” unless their outcome is largely pre-ordained.
  • The major URS change desired by WIPO is “a shift to the proposed respondent-default basis without panel”. This translates to a system in which a registrant failing to file a response within the URS’ tight time frame would automatically have his domain suspended, without any expert human reviewing the complaint to see if it stated a clear and convincing case of trademark infringement – a system reminiscent of the now-deceased SOPA legislation in which domains were to be blocked and crippled on mere allegations of IP infringement absent any judicial review, with the burden on the registrant to undo the damage after his website was shuttered.

Based on what was revealed in the disclosed documents, little to no URS implementation has occurred over the past year notwithstanding its critical role in the new gTLD program. There was also not a single disclosed memo analyzing the cost of implementing various aspects of the URS policy now contained within the Applicant Guidebook.We believe that the Summits concept will lead to unnecessary controversy and delay the launch of new gTLDs, and instead urge ICANN to provide staff support to an open and transparent multi-stakeholder URS implementation effort.Those interested in more details and analysis can read on…On May 29th we submitted a DIDP request to ICANN to try to get some basic information regarding what exactly was going on with implementation of Uniform Rapid Suspension (URS)(see internetcommerce.org/URS_DIDP for our request letter and background, and www.icann.org/en/about/transparency for ICANN’s response). In particular, we wanted to know what implementation had occurred to date, and in conjunction with whom, because there has been no initiation of an open implementation process such as that already executed for the Trademark Clearinghouse (TMC) – even though ICANN staff stated at both the Dakar and San Jose meetings that one would be commencing shortly. We also wanted to review any cost data analysis that justified the conclusion that the URS policy hammered out through long and arduous multi-stakeholder negotiations couldn’t be executed by arbitration providers at anything near the target filing fee, and that the URS therefore required “reconfiguration” through two “Summits”.URS is very important for several reasons:

  1. It, along with the TCM, is a required Rights Protection Mechanism (RPM) for new gTLDs. As a result, if URS policy is not locked down and arbitration providers put in place by the time that new gTLDs are ready for delegation to the root, their launch and the entire program will be unnecessarily delayed.
  2. URS policy will affect the economic prospects of new gTLDs. If it is altered to unreasonably diminish registrants’ due process rights then the registration of domains at new gTLDs may be inordinately depressed, and the optimum competition and innovation potential of new gTLDs will go unrealized.
  3. At the future point in time that ICANN finally undertakes UDRP reform (mid-2014 initiation at the earliest under the relevant GNSO Council resolution) there will undoubtedly be calls from trademark interests to impose URS on .com and other incumbent gTLDs. So it is important to all existing domain registrants that the URS truly be a narrow supplement to the UDRP used solely for incontrovertible instances of cybersquatting and providing adequate due process rights – and not a cut-rate substitute for the UDRP that abets reverse hijacking of the most valuable domains.

Our letter made clear that we hoped the requested materials could be made available by the start of the Prague meeting “so that we and others may be provided with the maximum amount of factual background to inform our remarks, activities, and interactions in Prague”. While ICANN did adhere to its target response time of 30 days, it did so with only minutes to spare – the response and accompanying documents were e-mailed shortly before midnight Prague time on Thursday, June 28th. Unfortunately, that was hours after the conclusion of the Public Forum at which we delivered remarks to the Board regarding URS implementation, and the day after a 90 minute session dealing exclusively with the URS. Had the DIDP response been delivered but forty-eight hours earlier we would have shared the materials with the entire community to better inform the discussion. But we are sharing them now in the hope that they shape the path of URS implementation in a positive direction.So what exactly did ICANN provide us with?The Cover MemoThis document affirms that the “Summit” concept is still completely amorphous and that ICANN still has no concrete blueprint for facilitating URS implementation:Much of the information sought within the request is not in existence. As Kurt Pritz, the key staff person responsible, publicly discussed during multiple sessions at the ICANN meeting in Prague (June 2012), the inclusion of a budget item in the FY13 did not arise as a result of extensive scoping or planning work. Rather, the budget item was included in the budget as a placeholder, in recognition that community discussion was needed. The budget was placed first; the planning is yet to come, and the URS session in Prague was one of the first steps. (Emphasis added)As for any data or analysis identifying which elements of the current URS Model caused staff to reach the conclusion that the price target is unattainable, nothing new is provided:The documentation of provider inability to meet the cost target of US$300–‐500 is already publicly available. For example, NAF submitted a public letter in June 2011 regarding the insufficiency of the cost model.We don’t really find this part of the response satisfactory because, again, there is no systematic analysis of the cost factors attributable to discrete URS elements, and that should be the starting point for any discussion about reconfiguring the model, much less decisions about what if anything needs to be revised. As for the National Arbitration Forum (NAF) letter, we have searched the ICANN website using multiple terms but have yet to locate it – regardless, that letter was sent in June 2011, the month in which the Board met in Singapore, adopted the Applicant Guidebook, and gave the new gTLD program a green light to proceed to the application stage, so it’s hardly new information and does not explain why no real implementation has been initiated over the past year. It’s also well known that NAF is providing a rapid suspension option as a UDRP alternative for the .XXX TLD, and that they charge the same for a filing ($1300) as for a single panelist UDRP case. If anything, NAF’s input and conduct indicates that the target of a $300-500 URS fee may be quite unrealistic and should be abandoned rather than used as an excuse to reopen a settled policy matter that generated significant controversy and heated debate.The memo then goes on to state that no decision has yet been made to alter the URS, that the Summit process envisions a “community discussion”, and that no detailed Summit planning has yet occurred :There have been no decisions made to change from what is set forth in the Applicant Guidebook. A discussion of prioritization of the characteristics of the URS is part of the anticipated community discussion that is imagined through the summit proposal.Because the Summit planning efforts anticipated within your Request have not taken place, the broad range of documentation you request does not exist within ICANN. (Emphasis added)Finally, after informing us that most of what we requested does not exist, the memo then informs us that some of what little relevant material does exist is being denied under the “Defined Condition of Non-Disclosure set forth in the DIDP”. That’s a bit frustrating.The Disclosed Supporting DocumentsWhile our 6-page document request letter elicited only 4 pages of disclosed documents, they are nonetheless of some considerable value and interest.The first is a “FY13 Business Case Data Sheet” that again asserts, without backup data or analysis, that “there is a significant gap between the features specified for the URS procedure and the desired cost”. The most revealing aspect of this document is the Scope section:The scope of the project is to develop a URS Model (including administrative procedures and rules) and to select URS dispute resolution providers.The following work will be required to accomplish this:

  1. Determine the makeup of a group to meet in a summit of UDRP provider representatives and community members;
  2. Conduct 2 summit sessions in Geneva (one in FY12 and one in FY13) to consider the challenges for implementation and propose a model for community consideration;
  3. Based on the outcome of those consultations draft a proposed set of procedures and rules to govern the URS process;
  4. Conduct formal RFP for URS providers;
  5. Appove [sic] and publish list of approved providers. (Emphasis added)

The major points we draw from this are:

  1. Despite the cover memo’s reference to “community participation” the Summits as envisioned will not necessarily be open to all individuals and organizations that wish to participate – the makeup of the “group” is yet to be determined, and would consist of some community members and of representatives of existing UDRP providers (but not of potential new URS providers).
  2. The two Summits were envisioned as being held in Geneva, Switzerland; most likely due to the fact that the World Intellectual Property Organization (WIPO) is headquartered there and was envisioned as the host. Geneva is one of the ten most expensive cities in the world based on anyone’s analysis (see en.wikipedia.org/wiki/List_of_most_expensive_cities_for_expatriate_employees#ECA_International); while corporate brand interests would not likely find that a significant barrier to participation, having to travel to and book accommodations in Geneva — not once but twice — would likely be an insurmountable obstacle for many parties, including academics and NGOs, that played an integral role in shaping the present URS model.
  3. If the two Summits reached consensus on a new model it would then be put out for community comment. While that after-the-fact review is commendable it is not the same as open community participation in recasting the URS. And, from the viewpoint of new gTLD applicants burning cash and anxious for delegation, it adds another time-consuming step to the process.
  4. Following that community review the arduous task of drafting proposed procedures and rules – true implementation! — would finally commence. That would chew up considerably more time, especially as “the devil is in the details” when it comes to translating broad policies into precise implementation language.
  5. Once the procedures and rules were finalized a RFP would be conducted for URS providers. More time would be consumed to draft the RFP, review the responses, and appoint providers.
  6. In addition to the above, two critical steps are conspicuously missing from the Scope section–

The first is review of any proposed changes in URS policy by both the GNSO Council and the Board. The GNSO has already expressed concern that its gTLD policy primacy could be undermined by the contemplated Summit process – and ICA firmly believe that any policy alterations of URS or other aspects of the new gTLD program should be made in “regular order” with the GNSO playing its standard policy review and approval role, followed by Board scrutiny and approval.The second is the drafting and adoption of a standard contract between ICANN and selected URS providers. The STI-RT group that shaped the adopted consensus URS model was quite adamant that, unlike the current practice for UDRP providers, there should be a binding contract between ICANN and all URS providers. ICA seconds that position wholeheartedly, as we believe that a contract establishing the bounds of provider powers and giving ICANN a flexible range of enforcement mechanisms is an integral aspect of assuring registrant rights under this new RPM.This Data Sheet also discloses that the majority of the $170,000 funding placeholder requested for the Summits is earmarked for ICANN staff travel ($70,000 – Geneva’s costliness being no impediment when one has $350 million in applicant fees to draw upon) and for retention of a “professional facilitator and writing specialist” ($40,000). It’s not clear why ICANN believes that a professional facilitator, a departure from standard ICANN practice, would be required to guide Summit discussions.The final major observation we have regarding the Data Sheet is that the multiple steps envisioned for the contemplated process will be quite time-consuming, and cause us to doubt that ICANN could meet its stated goal of having the URS model recast and providers in place by June 2013 if this path is followed. In fact, if the proposed revision of the URS becomes a multi-step magnet for controversy, it could easily delay initial delegations of new gTLDs into 2014 or beyond.The second page of disclosed documents is the one that inspired the headline of this essay, and consists of a short April 12, 2012 e-mail from Erik Wilbers of WIPO to Kurt Pritz of ICANN. We quote and comment upon it with some slight trepidation as we recall that during an ICANN meeting session early on in URS development we orally quoted from a letter that WIPO had sent to ICANN that we believed indicated that the model being contemplated would most likely be a significant substitute for UDRP filings rather than the intended narrow supplement. At the end of the session a WIPO staff person approached us and angrily proclaimed. “You are not allowed to quote from our letter!” We replied that we would make fair use of public documents whenever we wished and that we believed that open and informed debate, not censorship, was the proper basis for policy decisions.Here are the relevant portions of the Wilbers e-mail:As promised, we now come back to the subject of your brief recent call.Frankly, the development of this file does not inspire confidence on WIPO’s part in our hosting a URS session at this stage.Starting with the blueprint offered three years ago (under the term ‘ESM’) through the observations submitted in response to various URS drafts (such as the detailed operational listing in WIPO’s letter of December 2, 2010), WIPO’s experience-based suggestions for a fair and workable URS structure have been well known throughout the deliberations that have begotten the URS as adopted by the Board.Thus, it would seem unlikely that these stakeholders would now feel able to commit to the rather fundamental changes we believe to be in everyone’s interest – notably a shift to the proposed respondent-default basis without panel, subject to appropriate safeguards. We would consider an express prior commitment to such a shift, including the requisite Board support, as a pre-condition to a fruitful meeting on the URS. (Emphasis added)From this correspondence we can conclude that WIPO was asked to host the URS “Summits” in Geneva. We believe that having WIPO play such a role would be a mistake, as in our view they have not acted as a neutral party seeking to achieve a reasonable balance between registrant and rights holder interests in the URS debate, but as a vigorous advocate for the primacy of trademark over registrant rights. Further, as the e-mail demonstrates, they have never accepted the legitimacy of the URS model arrived at through ICANN’s multi-stakeholder consensus process but remain committed to discarding it in favor of a model closely adhering to their proposed (and rejected) ESM.Second, WIPO would only consent to hosting URS Summits if their result was largely pre-ordained – in which event, we ask, why bother holding the Summits at all? As a pre-condition to playing host, WIPO wants an express prior commitment, guaranteed by “requisite [ICANN] Board support” that “rather fundamental changes” will result — the principal one being “a shift to the proposed respondent-default basis without panel, subject to appropriate safeguards”. This imperious demand should be dismissed out of hand by members of ICANN’s Board should it ever reach them.Of course, the present URS model is a compromise in which the narrow time window in which the registrant must respond is counterbalanced by the assurance that even when the registrant misses that deadline the complaint will still be reviewed by a trademark law expert to determine whether it presents a prima facie case of infringement through clear and convincing evidence. What WIPO wants – “respondent-default basis without panel” — is a process in which all default cases would be decided in favor of the complainant absent any examiner review. This bears a striking resemblance to the recently deceased SOPA legislation, in which domains would first be blocked or denied payment and ad services absent any judicial review, with the burden on the registrant to prove his innocence after his website is shuttered and he is deprived of income and speech.In this context, WIPO’s reference to the retention of “appropriate safeguards” is worthless – the assurance of expert examiner review is the appropriate and necessary safeguard for registrants and this is precisely what WIPO seeks to eliminate. We have no objection to a URS being provided at the lowest possible cost to complainants – but not when the cost target takes primacy over retention of the most important and meaningful guarantee of registrant rights.The remaining two pages of disclosed documents consists of e-mails between ICANN staff discussing the “mess with the GNSO” triggered by the surfacing of the Summits concept in a draft budget, as well as the inquiries it triggered from other parties.Closing ThoughtsWe remain incredulous and disturbed that a year after launching the new gTLD program’s application phase virtually nothing has been done by ICANN to implement the URS. What is clearly required is a process for expedited discussion and resolution of implementation of this required RPM, conducted in a manner that won’t reopen the existing model in fundamental ways and thereby set off a multi-tiered controversy that will inordinately delay the delegation of new strings and the offering of domains to general public registrants.Given its insistence on “rather fundamental changes” as a pre-condition for even hosting discussions in Geneva, and its goal of a URS model that is at broad variance with the existing consensus model and that would jettison the most fundamental registrant safeguard – the assurance that every complaint will be reviewed by a competent examiner to see if passes ‘the laugh test’ – it seems evident to us that WIPO is part of the problem and not the solution when it comes to URS implementation, and that the road to timely URS implementation does not pass through Geneva.While we remain skeptical that a URS preserving essential registrant rights can be provided within the $300-500 price target range, we do believe that a URS that is utilized only for incontrovertible cases of cybersquatting – that is, cases in which an examiner can reach a firm conclusion within a very brief time span (and if he cannot, then the complaint properly belongs in a UDRP or litigation) — can be offered for a significantly lower fee than a UDRP.The 90-minute URS discussion session held in Prague revealed that there are parties on all sides of this question who share a common goal of implementing a URS that is rapid, cost-effective, and rights protective and are willing to engage in goodwill discussions to achieve it. Rather than expending $175,000 on a cumbersome, multi-stage “Summits” process we would urge that ICANN allocate some professional staff to facilitate an Implementation Advisory Group (IAG) that is open to all interested parties and transparent in operation — similar to the one that has achieved so much progress on the TMC — to tackle the issue. If this IAG comes up with recommended alterations to the present model that implicate policy they should of course be considered by the GNSO, followed by the Board, hopefully on an expedited basis.As for selecting URS providers, ICANN legal staff should be devising a standard contract that will be required for all those entities who wish to provide this service. The RFP should be widely distributed as there are many competent arbitration providers around the world, beyond WIPO and NAF, who are quite capable of assembling trademark experts to administer a narrow rights protection procedure focused solely on clear-cut infringement. In fact, given that WIPO is clearly hostile to the current URS model, and that NAF is on record regarding the high fee it would charge, am aggressive RFP outreach could attract competent new arbitration providers and help assure that the WIPO-NAF duopoly that has dominated UDRP decision-making is not replicated for the URS. That would be another positive pro-competitive outcome for the new gTLD program.The time for initiating implementation of the multi-stakeholder consensus URS model contained in the Guidebook is long past due. So let’s get on with it through a multi-stakeholder discussion that dispenses with any need for a cumbersome and exclusionary Summits approach guided by an expensive professional facilitator. ICANN community members, acting in an expeditious manner and in a cooperative spirit of goodwill, are fully capable of getting the job done on their own — if they are allowed to do so.This article by Philip Corwin was sourced from the Internet Commerce Association website with permission at http://internetcommerce.org/WIPO2ICANN_URS_Summits.

New gTLDs: Competition or Concentration? Innovation or Domination?

Philip Corwin imageThis guest post was written by Phil Corwin and originally appeared on DomainNameNews.

Expect the unexpected. Because it will happen. And it has just happened in the application phase of ICANN’s new gTLD program, with potentially profound consequences for the future of e-commerce.

During the three year period between the June 2008 ICANN Board approval of the new gTLD program and its June 2011 vote to proceed to the application stage, and even beyond then in the context of continuing GAC-Board discussions, only one competition issue ever became the subject of heated and protracted debate. And that was whether ICANN’s requirement for registry-registrar separation should be relaxed in concert with the new gTLD program, a question that ICANN eventually answered in the affirmative notwithstanding resistance from some members of the GAC.

But the consequences of that decision will hardly be a ripple across the Internet. While the consequences of what has happened could be a landscape-sweeping tsunami. And that is because the dominant search engine, Internet data aggregator, and Internet advertising provider, along with the leading online retailer, have emerged as the number two and three applicants for new gTLDs. Not just for their trademarks/brands, but for dozens of key generic terms. And, in a process that culminates in auction whenever any other non-community applicant for the same ‘string’ elects to stay in the fight, they have the bulging wallets to shove others aside and acquire their desired gTLDs. If they secure their bids the nature of Internet search and commerce could be permanently transformed in a manner far afield from the ‘competition and innovation’ mantra used to justify this massive roll of virtual dice.

The reaction has already started. In an article published in the June 14thWashington Post just one day after ICANN’s “Big Reveal” event in London, titled “Google, Amazon lead rush to secure dot-dominance”, the perceived stakes were described:

Amazon and Google are staking claims to large swaths of the Internet under a new system for labeling Web domains, bolstering their ability to control traffic as the Web expands beyond the realms of “.com,” “.gov” and “.org.”

The bids by those companies to acquire new domain names such as “.book,” “.shop” and “.movie” renewed fears among competitors that a powerful few will dominate the Internet marketplace of the future…

If Internet users embrace the new domains, the companies that control them could bear considerable influence on Web traffic.

Amazon has applied to control the “.book” and “.movie” names, for example, meaning that anyone else selling those items would have to get the company’s permission to be listed within that domain.

The National Retail Federation had urged that oversight of such generic domain names be given to impartial entities rather than individual companies.

“The results for now are as potentially unfair to businesses and consumers as we feared they might be,” said Mallory Duncan, general counsel for the trade group…

Duncan said consumers may not realize that the new domains are under private control and that the open competition that prevails within the “.com” realm may not exist within, say, “.grocery.”

“Consumers going to that domain may not realize that all of their shopping is being done with one company instead of a competitive market,” Duncan said.

Google was among the most prolific applicants, seeking to register 101 names at an application cost of $18.7 million. Never lacking in its quest for virtual completeness, the company is seeking to control “.mom,” “.dad” and “.kid.”

Amazon applied for 76 new names, including “.amazon” and “.zappos.”…

Others, however, are bracing for the giants of the Internet to seize even more power over its commerce.

“It would be wrong on so many levels for Amazon to acquire either the ‘.book’ or ‘.author’ top-level domains,” said Paul Aiken of the Author’s Guild. “Their ambitions to extend their monopoly in bookselling have long been abundantly clear, and with their cash, their technical knowledge, this could be yet another way in which they’ve extended their control over the book market. This really makes no sense.” (Emphasis added)

It does not matter whether one agrees with the concerns expressed by the National Retail Federation and the Authors Guild. What matters is that they and many other interests who have expressed strong misgivings about the new gTLD program have been handed a new and volatile issue by the unexpected length and scope of the Google and Amazon applications.

The potential effects on competition are major yet quite different for these two Internet giants.

Google is the massively dominant Internet search and advertising firm. One must assume that its applications for dozens of generic gTLDs beyond its brands (such as .gmail and .youtube) are based on proprietary analysis of the trillions of search terms typed into Google since its inception, and a conclusion that these gTLDs are most closely correlated with income-generating consumer search patterns.

Understanding the implications of Google’s bid requires a basic familiarity with the two species of Internet search. Google already dominates mediated search, in which its ever-morphing “secret sauce” algorithm takes a user’s search term and then presents a long list of websites deemed to be relevant. So important are these results that an entire SEO-optimization sector exists to assist online businesses in maximizing their odds of being displayed on the first few pages of a Google search.

The other species is direct search, the approach long used by domainers who seek to acquire and monetize noninfringing generic word domains capable of attracting type-in traffic at .com and other leading gTLDs, as well as well-trafficked ccTLDs like .uk and .de. Some members of ICANN’s Board, while disabused of the notion that all domainers are cybersquatters, may still view them as somewhat unsavory speculators rather than savvy investors. Yet, ironically, the entire new gTLD program is based on the direct search model pioneered, refined and monetized by domainers – elevated from the second level of the DNS to the first – and entrepreneurial new gTLDs applicants are investing/speculating in the belief that controlling key generics at the top level is a winning business plan. (Likewise, the “digital archery” methodology selected by ICANN to determine batching queue status for new gTLD applications bears close resemblance to the “drop catch’ techniques used by domainers to acquire expiring domains re-entering the secondary market.)

So the 101 gTLDs applied for by Google carry the possibility that it can expand its mediated search dominance into key direct search gTLDs, thereby further consolidating its control in connecting consumers with e-commerce while adding to its invaluable proprietary database as it peruses new gTLD registry data that no one else can access. It is questionable how much new competition will result from the integration of more virtual real estate into the Googleplex-dominated cyber-empire and the accompanying expansion of its Internet hegemony. There may also be domain marketplace spillover effects in terms of Google having a registration advantage over other new gTLDs that might be used to similar ends by the same registrants, if there is any perception that domains at new Google-controlled gTLDs will somehow gain favor in Google search engine results over the same domain registered at a competing non-Google gTLD. It is also unclear whether Google will make the most desirable second level domains at its new gTLDs available to the general public – other new investor-backed gTLDs will almost surely elect to sell the most coveted second level domains to the highest bidders during their ‘land rush’ period, but Google’s wallet is so fat that it can retain for its own purposes all second level domains predicted by its crunching of search data to be most trafficked.

The issues are somewhat different with Amazon’s bid for 76 gTLDs, including .book, .cloud, .game, .movie, .play and .shop. Again, one presumes that Amazon based its selections in large part on its proprietary database of searches done by shoppers looking for goods on Amazon. Competitor e-retailers would have understandable trepidation about registering their own websites on real estate controlled by the leviathan of Internet retailing. But, somewhat incredibly, Amazon’s applications all carry the notation that “Amazon and its subsidiaries will be the only eligible registrants”. While this would be understandable for gTLDs like .amazon, .kindle and .fire, it becomes more problematic for dozens of generic word applications. While Amazon might open them to public domain registrations down the road, for now at least their object seems to be the assurance that competitors cannot acquire them and use them as a platform for competing retailer services within a vertical generic silo.

If we liken the new gTLD program to a land rush, this would be equivalent to the U.S. opening the Oklahoma territory to farming and ranching in the 19th century and incumbent agricultural interests acquiring the most valuable acreage to make certain it continues to lay fallow, thereby preventing any lowering of commodity prices. This is indeed ‘squatting’ at the highest level of the DNS, and how Amazon’s ‘No Trespassing’ plans translate into any new competition or innovation is near-impossible to discern. (Note: Google has similar plans for some of its generic bids – such as .cloud (again!) and .blog – with the seeming aim of acquiring the new gTLD primarily to prevent anyone else from developing it through domain registrations open to the general public.)

Adding to the policy mix is the fact that ICANN has structured the new gTLD program without qualitative analysis of applicant intent outside of the narrowly focused objection and public comment process, and with no requirement that any new gTLD be developed to even a minimal extent. All applications that survive that gauntlet eventually go to auction if competing bids do not drop out, agree to be bought out, or reject an invitation to join forces. For the 21 new gTLDs for which Google and Amazon submitted competing bids (based on exact match or confusing similarity) — including .app, .cloud, .free, .search, and .store — the competition will be a bit like Godzilla vs. Rodan; as of March 31, 2012 Google’s cash on hand was a towering $49.3 billion, while Amazon’s was a relatively paltry but nonetheless impressive $2.3 billion (and this does not take into account that competitors can be persuaded to drop out or merge efforts by grants of stock in the parent bidder or the new gTLD registry). For all other applicants competing with Google or Amazon the results of that contest will be similar to the faceoff between Bambi and Godzilla – splat! road kill!

There are of course other applicant groups who have put in bids for scores of new gTLDs. However, none of them represent the dominant search/advertising and retailing companies on today’s Internet, so they can make a better argument that their acquisition of multiple new gTLDs may actually introduce some effective new competition and innovation against the dominant players. And it is doubtful that any of them plan to let their new gTLDs lay fallow – their aim is likely to maximize domain sales to and usage by registrants seeking quality domains in relevant generic silos.

The competition issues presented by these large and unanticipated gTLD bids from Google and Amazon may not fit neatly within traditional antitrust analysis but are important nonetheless, and compliance with ICANN’s rulebook is no assurance of adherence to relevant national laws. The U.S. Supreme Court has defined monopoly power as “the power to control prices or exclude competition” in a particular market — which raises the issue of whether the relevant market is the universe of all gTLDs or a single generic vertical gTLD silo. The Sherman Antitrust Act makes it a felony for any person to “monopolize . . . any part of the trade or commerce among the several states, or with foreign nations”. The elements to be proven under the Sherman Act are that the defendant possesses monopoly power in a properly-defined market and obtained or maintained that power through conduct deemed unlawfully exclusionary. Again, how these principles might be applied to new gTLDs is unknown territory – just the kind of cutting edge issue that aggressive prosecutors like to explore and lay claim to. It is clearly arguable that if Google and Amazon are each allowed to own all of these domains and to use them to promote their own products and services, or to prevent others from making them available for public domain registrations, that it will be exclusionary to all of their competitors. The remaining question would be whether such conduct is unlawfully exclusionary, and that is a question that could take years of litigation to answer.

We are less familiar with EU competition law and policy, but our impression is that it is broader and more flexible than the U.S. approach and thus even more likely to provide a context for raising questions about these gTLD bids.

As for ICANN’s internal review process, potential objections to the Google and Amazon bids don’t appear to fit neatly within any of the four objection classes that ICANN has established for the program and that will be open for the next seven months, so we will most likely see initial competition-based objections surface during the 60-day post-application public comment period.

Of course, the real pressure may be brought upon ICANN as groups with concerns about the Google and Amazon bids (including, perhaps, other new gTLD applicants) meet with legislators and regulators in Washington, Brussels, and other national capitals to urge investigations, hearings, and intervention. Google has already been the recipient of much antitrust scrutiny, especially in the EU, but also from the U.S. Federal Trade Commission which has also been actively monitoring ICANN generally and new gTLDs specifically.

Such legislative and regulatory activities could in turn trigger objections from the GAC, which has instructed ICANN that it reserves the right to oppose applications that are not in the ‘global public interest’ – and which is not confined to basing objections on pure statutory law. At a time when ICANN’s preservation against potential takeover of its key functions by the ITU or other entities is a very live issue, and when its re-award of the IANA function contract is still in limbo, it could ill afford to ignore such protests from governments otherwise supportive of its multi-stakeholder governance model. Especially when those governments have other more pressing concerns, such as staving off currency collapse and economic contraction, and will have little patience for controversies that might well have been avoided with better planning.

Should such protests arise against the Google and Amazon bids, it is unclear how that would impact ICANN evaluation of competing bids for the same gTLDs. If the two companies dig in and insist that their generic gTLD bids will not have an anticompetitive effect, and refuse to withdraw them, the processing of all competing applications for identical and similar strings could be put on hold until any relevant regulatory actions or litigation are resolved. Which could be months or years.

So, to circle back where this article began, these unexpected bids from Google and Amazon could have unexpected repercussions for the entire new gTLD program and for the future development of the Internet and e-commerce. Stay closely tuned as more unanticipated developments are almost sure to ensue.

As mentioned above, this guest post was written by Phil Corwin and originally appeared on DomainNameNews. Mr. Corwin is Founding Principal of the Virtualaw LLC consultancy and serves as Of Counsel to Greenberg & Lieberman and as for the Internet Commerce Association (ICA), all located in Washington, DC. This post is his personal opinion.

The article has been reproduced with the permission of Phil Corwin and DomainNameNews.

Internet Commerce Association Activities Update

Internet Commerce Association logoWriting a guest column in Domain Name Wire, Philip S. Corwin, Counsel for the Internet Commerce Association, provides an update on ICA happenings to date in 2010.

The article looks at:

  • ICANN meeting participation: the ICA participated in the Kenya meeting remotely due to security concerns raising the issue of “the illicit attempt of the Czech Arbitration Court (CAC) to amend its supplemental UDRP rules to offer a fast track process that deprived registrants of essential due process rights” while in Brussels the ICA raised concerns regarding rights protections for new gTLDs, UDRP reform and issues around IP violations
  • Comments to ICANN on registration abuse policies, Uniform Rapid Suspension, accountability and transparency, fourth version of the Draft Applicant Guidebook, improvements to the Registrar Accreditation Agreement and the inter-Registrar Transfer Policy
  • Keeping an eye on legislative changes in the US.

To read the full article by Philip Corwin, see: