The ICANN IRT needs a lesson in getting buy-in.

Implementation Recommendation Team (IRT) was set up by trademark interests to come up with a way to protect trademark owners during the launch of new top level domain names. The process by which it was set up and operated could be a case study in how not to get buy-in for a new idea.

I’ve worked with a lot of teams over the past dozen years and have had to sell ideas many times. I’ve managed groups of union workers, had to come up with a plan on how many people to lay off in a company (and whom) and faced many other challenges. One lesson that has been ingrained in me since I entered college at 18 was that you need to involve the people who will be affected by your plan in the decision making process. Ideally, you get them to think the plan was their own to begin with. (Try telling a group of 30 union workers that you’re changing how they do their work!)

So here’s a brief history of IRT. It was set up at the behest of ICANN’s intellectual property constituency. Few people were made aware of it and how to apply until it was basically too late. The one intellectual property expert that the Internet Commerce Association (ICA) recommended was rejected.

Once formed, members of the IRT operated mostly behind closed doors until its first draft recommendation was released. It was even so bold as to vote to keep its deliberations secret.

Then it released its “plan” all at once. This isn’t some minor tweaking to existing guidelines; it’s a bombshell. It completely re-writes the rules.

At the ICANN meeting in Sydney last week there was apparently quite a bit of push back to the plan. Kathy Kleiman, co-founder of the noncommercial users constituency, a drafter of the UDRP and also a trademark and telecommunications attorney, stated about IRT:

We object to the process that composed the IRT. This is largely the intellectual property constituency, which while experts also have opinions and they have things that they want on behalf of their
clients, I spent half a decade in ICANN as co-chair of different working groups banging heads with registrars, with business, with intellectual property constituency. That’s traditionally how we get things done.

So, Mr. Chairman, I would like to argue going forward the group that reviews the current and upcoming comments be one composed of constituencies excluded from the IRT process. Why? Because all week
the IRT committee has sat on high rejecting even the most basic of suggestions and ideas.

In the normal world, the way IRT has put forth its recommendations would surely result in defeat. But this process may be in a parallel world.

Two articles you should take the time to read.

Over the past 24 hours I’ve read two great domain name articles I want to pass along.

The first is an editorial by Jeremy Rabkin, Professor of Law at George Mason University. Rabkin discusses what ICANN independence from U.S. oversight would actually mean. He points out that independence may be a bad thing, even for countries that disdain U.S. control:

Down the road, one can imagine demands from Brussels that ICANN cooperate with EU efforts to tax commercial sales negotiated over the Internet. Or perhaps it will demand a new understanding aimed at forcing top level domain managers to uphold EU privacy standards against U.S. government security measures. Or perhaps the EU will demand that a certain number of ICANN directors be appointed from a list of nominees provided by the EU, itself.

ICANN might try to defend itself by rallying political support in other quarters. It often talks about Internet “stakeholders.” The term is so amorphous it can encompass a variety of advocacy groups, concerned about Internet policy—or governments associated with national domain names (whether the association is notional, as in Mexico or Australia, or directly managerial as in China). A threatened ICANN is likely to be a more politicized ICANN.

I’ve long agreed with the views Rabkin so eloquently explains. This week at the ICANN meeting in Sydney, the Governmental Advisory Committee welcomed a Chinese delegation back to its club. That should send shivers down the spine of free speech advocates around the world.

The second article worth reading is a post by Rick Latona about new gTLDs. I don’t want to write much to give away the punch line, but you should take a few minutes to read it.

A look at what domain bloggers and news sites are writing about this week.

Various domain news sites and bloggers have written some great articles this week that are worth referring to.

Demand for new gTLDs - Michael Berkens beat me to writing a story about ICANN CEO Paul Twomey’s comments about new gTLD demand. Twomey refers to demand as demand by people who want to launch new TLDs, not people who want to actually register them.

Change your Passwords - Elliot Silver discusses changing your passwords after returning from a trip. Not domain news, but it’s very important. My added input: instead of using public wifi, get a cellular network modem card. Also, use https:// when connecting to Gmail.

Internet Commerce Association helps domainers in VeriSign court case - Domain owners scored a major victory against VeriSign last week. Internet Commerce Association explained its role on its web site.

Dan Warner leaving Dark Blue Sea - A familiar face in the domain name industry is moving on, but will still be in the industry.

ICANN releases two new papers from Professor Dennis Carlton regarding the economic consequences of releasing new top level domain names.

Surprise! When you pay the same person to evaluate critical comments about his original work, he decides that his original work was correct.

That’s what happened when Internet Corporation for Assigned Names and Numbers (ICANN) paid Professor Dennis Carlton to evaluate (defend) critiques of his original papers. ICANN just released two new papers by Carlton that refute critiques of his original reports.

Here are some of the more interesting tidbits:

1. Carlton says the report that ICANN’s board called for in 2006 to study the competitive advantages of new TLDs isn’t really necessary. As it turns out, it doesn’t really matter if new TLDs compete with incumbent TLDs such as .com, says Carlton.

2. Carlton reiterates his claims that price caps are not necessary on new top level domain names. He even addresses the concerns that incumbent registries could claim “equitable treatment” clauses in their contracts to remove their price caps. Carlton says ICANN has assured him there’s nothing to worry about:

We understand from ICANN that there is no basis for this concern. The language in this clause does not require identical treatment among all registries and recognizes that differences across ICANN contracts with different registries can be “justified by substantial and reasonable cause.” ICANN’s contracts with existing TLDs recognize that different practices may be appropriate for different registries and allow ICANN latitude to implement different procedures. I am aware of no statement either by ICANN or the Commerce Department favoring the elimination of price caps specified in existing registry contracts.

Unfortunately, Carlton ignores the history of the existing .com registry contract between VeriSign and ICANN (which is currently the subject of an antitrust lawsuit). VeriSign abused its position by introducing SiteFinder, which resulted in lawsuits between VeriSign and ICANN. To settle the suit, ICANN granted a no-bid contract to VeriSign for .com domain names that included 7% annual price hikes. So to assume that ICANN would just ’say no’ to VeriSign about removing price caps and go on its merry way is preposterous. Furthermore, it may be in ICANN’s interests (but not domain registrants’) to agree to hike .com fees in return for a greater cut of VeriSign’s revenues.

Carlton also addresses price caps in regards to trademark holders having to pay a lot to register their trademark domains with tiered pricing (e.g. Google being charged extra because it has a big name). He says this can be handled through ICANN’s intellectual property protection mechanism. The problem is, Google could “protect” a domain by getting it through UDRP, only to have to pay the registry $10,000 a year to keep it registered.

3. On Page 13, Carlton goes through examples of innovations that could be created using new TLDs. One example is a financial services domain that provides secure transactions. But this can be achieved with existing TLDs and laws.

4. In a claim that is sure to raise the ire of trademark owners, Carlton claims that registering typos of your trademarks is not defensive. Instead it’s productive, since it funnels traffic to your main web site. I guess it’s only productive if you don’t let the domains resolve.

There’s a lot more than that. You can read the reports and submit comments. Just be advised that if you make a good argument, ICANN may use more of your domain registration fees to pay Carlton to defend them.

Question and answer period at hearing gets testy.

In part 1 of our coverage of today’s U.S. House of Representatives hearing on ICANN, DNW covered committee member’s opening remarks. Part two covered witnesses’ opening testimony.

The real fireworks started when the committee members asked questions of the witnesses. Committee chairman Rick Boucher (D-Virginia) started the questioning by following up on Verizon’s comments about cybersquatting. (Verizon had said that cybersquatting is still rampant and that many of the cybersquatters are actually ICANN-accredited registrars.)

Boucher addressed ICANN president and CEO Paul Twomey about this, asking how registrars that are cybersquatters are allowed to exist. Twomey said ICANN has significant resources committed to enforcing its registrar agreements. Verizon Vice President Sarah Deutsch responded that ICANN hasn’t taken any steps against registrars that are cybersquatters. Twomey said his recollection is that they have taken action against cybersquatter registrars, but sometimes they take action under a different contract breach for expediency.

Boucher asked Twomey to write a letter explaining what ICANN has done to address cybersquatting registrars and the number of related de-accreditations.

Rep. Cliff Stearns, (R - FL) proceeded to blast ICANN’s financial surplus. He said ICANN should start acting like a non-profit and use excess money to lower costs to registrars and registrants. Stearns continued to berate Twomey, suggesting the current $7M surplus should be used to address cybersquatting or make domain names cheaper for consumers.

Stearns addressed Thomas Lenard, president of the Technology Policy Institute, during his questioning of Twomey. Stearns said that ICANN is able to choose what it does with the money because it is only accountable to itself.

Rep. John Dingell (D - MI) then asked a series of yes or no questions, such as if ICANN’s contract with VeriSign was transparent. For most questions the NTIA representative abstained, ICANN answered yes, VeriSign went with ICANN some of the time, and the rest of the witnesses replied ‘no’.

Next there was a bit of a showdown between GoDaddy’s General Counsel Christine Jones and Twomey. Jones chided ICANN for lack of transparency, citing its private board meetings and contract negotiations with registrars. Jones said Go Daddy has made several requests to ICANN for information but “we basically get stonewalled”. Twomey responded that Jones’ claims weren’t true, but Rep. John Shadegg ( R - AZ) strongly questioned Twomey’s assertions. For example, he questioned if Twomey’s assertion of meeting transcripts were true or if there were just meeting minutes.

I spoke with Jones after the hearing concluded. She was very happy with “huge turnout on that type of hearing” by representatives. She said ICANN won’t be accountable if it’s only accountable to itself. For example, ICANN’s outside review boards operate under rules created by ICANN’s board, and ICANN’s board ultimately decides what action to take based on the outside review.

Jones said she thinks most representatives want to extend the JPA “not because they want the U.S. government to have a heavy hand in the internet, but because the transition to private sector management is still in process. We just haven’t quite reached that destination yet.” Jones continued, “It’s not a partisan or controversial issue. Let’s keep the internet safe and secure until ICANN can stand on its two feet to do that.”