by Philip S. Corwin, Counsel, Internet Commerce Association
[Asking a lawyer to keep a guest post to 600 words or less is impossible. So Phil Corwin’s ICA update is a bit longer. But it’s a great update, and it’s good to know that ICA is still working for you. -Andrew]
Thanks to Andrew for this opportunity to blog about what ICA has been up to so far this year – while he takes a well-deserved vacation. Domain Name Wire is an indispensable resource for anyone involved in the domain game and he deserves broad appreciation for his consistent, high quality work.
2010 has been a very active year for the ICA — once it got past the threshold issue of whether it would survive! Quoting Mark Twain, reports of its death were “greatly exaggeratedâ€. Thanks are due to leading domain industry companies and individuals for their generous continuing support that sustains my work on behalf of domainers.
Here’s a “capsule summaryâ€ of ICA’s activities in 2010, as well as a look at some big issues looming ahead. ICA remains the only trade group speaking out on domain industry issues within ICANN and in Washington, DC. (Note: Even a cursory summary of our work this year runs several pages, so you may just wish to scroll through and focus on those issues of most concern to you) —
ICANN Meeting Participation
Like many others, we did not attend the initial 2010 ICANN meeting held in Nairobi, Kenya due to security alerts. However, we did participate in a number of sessions remotely (which required being up in the middle of the night), and during the Public Forum we raised a question regarding 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 – an issue that we continued to pursue through our comment letter on ICANN’s accountability and transparency (see below).
The summer meeting in Brussels had very large turnout, due both to the location as well as the significant issues under consideration – especially the then just-published fourth version of the Draft Applicant Guidebook (DAGv4) for new gTLDs. We attended and participated in many separate sessions throughout the week, including the Public Forum held at every meeting that permits direct presentations with the ICANN Board. Our remarks to the Board can be found here and made three key points:
1. Rights protections for new gTLDs should not go beyond a compromise reached earlier in the year.
2. ICANN should initiate a balanced and comprehensive process for UDRP reform aiming to assure uniformity and consistency in decision-making while discouraging forum shopping.
3. DAGv4 needed clarification regarding the “patternâ€ of IP violations that would disqualify an individual from being involved in a new gTLD application – especially given the lack of consistency and uniformity in UDRP decisions.
We were joined in Brussels by employees and representatives of ICA member companies, as well as individual ICA members (including Michael Berkens and Gregg McNair), and this allowed for the exchange of information coming out of the many meetings and the sharing of views and strategy on a variety of issues – as well as the sharing of mussels, beer, and other Belgian specialties after the long working days.
As Andrew very recently noted, for those of us who follow ICANN policymaking and participate in the notice and comment process that is a major part of its bottom up policymaking consensus apparatus, 2010 has been a year of drinking from a very large fire hose. It is simply impossible to prepare a detailed and considered comment on each and every proposal so we have to pick and choose those that are most relevant to the domainer community.
These are the topics on which ICA has filed an official comment in 2010, with a link to the ICANN website where the letter can be found. BTW, each and every letter is based upon input from the ICA Board and members and receives a thorough review by them prior to final submission. (Note: Some of the links to the PDFs of our comment letters appear to be dead on the ICANN website, so if you want to read our full comments and can’t find them there just e-mail me to request a copy) —-
Initial Report of the Registration Abuse Policies Working Group (March) — We participated in the deliberations of the RAPWG and our comments dealt with a wide number of subjects. Some of our key positions were:
– it is critically important to differentiate between registration and other domain abuses that are properly within the purview of ICANN policymaking versus illegal and illegitimate uses of domains that are outside that scope and within the jurisdiction of national governments and international organizations;
– a PDP should be initiated regarding the current state of the UDRP – but only if such PDP is broadly comprehensive and not just undertaken from the perspective of complainants;
– the issue of fake renewal notices should be referred to ICANN’s Compliance Department and a policy development process (PDP) should be initiated on this subject, and that PDP should include a focus on the continuing problem of domain theft;
– nonbinding best practices should be developed to assist contract parties in addressing malicious domain use, including a focus on account security management and identification of stolen credentials that are associated with domain theft;
– seconding the Report’s observation that PPC monetization is not a registration abuse, and agreeing that PPC abuse is best addressed by private sector actors — while further urging that any PDP on comprehensive UDRP reform consider the establishment of a “cure periodâ€ for minor, transient, and unintentional infringement caused by third party placement of PPC advertising links.
Domainers should take particular note of this last point, as both the RAPWG Report and DAGv4 for new gTLDs now contain explicit findings that PPC monetization of parked domains is not in and of itself a registration abuse or evidence of bad faith registration, as this ICANN position should be of considerable assistance in future UDRP cases. Also, whether you call it a “cure periodâ€ or a “notice-and-takedownâ€ procedure, it is likely that ICA’s proposals for UDRP reform will include a strong recommendation that domainers who have inadvertently infringed a mark due to third party ad links should be given a reasonable period to correct that without being subject to domain transfer.
Uniform Rapid Suspension (April) — This letter:
– noted our belief that this “compromiseâ€ version of URS for new gTLDs was substantially more balanced than those which preceded it due to its incorporation of due process protections for registrants,;
– continued to question the advisability of having different rights protection mechanisms (RPMs) available at new versus incumbent gTLDs and advocated the initiation of a PDP for comprehensive UDRP reform to establish uniform rules and procedures across the entire gTLD space;
– suggested a number of technical improvements to and clarifications of the proposed URS language.
ICANN Accountability and Transparency (July) — Echoing remarks we had delivered at a session held at the Brussels meeting, our letter commended ICANN for having made substantial strides in improving the overall accountability and transparency of its decision making process -while noting that serious shortcomings remain, as we amply documented in regard to the illicit proposal of the Czech Arbitration Court (CAC) to implement substantial alteration of the UDRP via amendment of its own Supplemental Rules. ICANN’s handling of the CAC proposal raised very serious questions about ICANN’s commitment to full accountability and transparency, including:
– Is the public comment process truly meaningful when the CAC has been permitted to implement the “coreâ€ of its EDC proposal notwithstanding the unanimous opposition of all those who commented and the lack of formal approval from ICANN to proceed?
– Is there adequate transparency when the community has yet to learn any of the details of the discussions that occurred between CAC and ICANN staff in advance of the EDC proposal being put out for public comment, and when ICANN staff subsequently parroted the CAC’s self-serving and unconvincing characterization of the action it ultimately took?
– Is there adequate accountability when ICANN staff permitted the EDC proposal to be published for comment when, as subsequently admitted by ICANN staff at the Nairobi Public Form, ICANN has yet to develop any overall policy regarding the permissible scope of arbitration provider changes that can be implemented via amendment of their Supplemental Rules or the process that must be followed for such changes to take effect? Further, is there adequate accountability as well as effective and timely policy development when, four months after the community was told in Nairobi that such a policy was being developed, no further guidance has been promulgated by ICANN in regard to this critical matter for all domain registrants – a lapse that takes on critical importance given the continuing possibility that WIPO will seek to implement its own version of expedited UDRP as well as other significant substantive UDRP changes via amendment of its own Supplemental Rules?
It’s been more than a month since we raised those questions, and we are still awaiting some meaningful answers as well as a draft of ICANN guidance on the permissible scope of UDRP provider actions under Supplemental Rules. Have no doubt that we will continue to raise these questions until we get satisfactory answers.
Fourth version of the Draft Applicant Guidebook (DAGv4) for new gTLDs (July) — This is the main event for 2010 (as it was in 2009), and this may well have been the last opportunity to comment on the DAG before it becomes Final. Our letter referenced our three prior submissions on the rules for new gTLDs (dating back to December 2008) and then made the following key points:
– The incorporation of the STI-RT recommendations in this DAG is a welcome conclusion to a divisive year-long debate over rights protections. Other than the addition of clearly incorporating the unanimous STI-RT recommendation that URS providers be placed under contract, these provisions should remain unchanged. Any further consideration of rights protections across the gTLD space should occur in the context of a balanced and comprehensive UDRP PDP.
– The further clarification of the restrictions on differential domain pricing at the time of renewal is greatly appreciated.
– While ICANN extended excessive protections to geographical names at the top level, we are pleased that no restrictions have been placed on such names at the second level and urge that this position be maintained in the Final Applicant Guidebook.
– The provisions regarding applicant evaluation on the basis of past findings of infringement requires additional clarification as well as the addition of a statute of limitations such as is already provided for far more serious offenses.
– Efforts must continue to reach acceptable consensus on the registry-registrar separation issue, with particular attention focused on entities that offer registrar services as a customer accommodation, and with a clear exemption for individuals who control a registrar for management of their own portfolio without offering such services to the general public.
This letter again commended the DAG language for explicitly recognizing that trading in domain names for profit, holding a large portfolio of domains, and monetizing Internet traffic are not in and of themselves indicia of bad faith conduct. Once this language is adopted as final this official ICANN position should be respected by all UDRP providers.
Improvements to the Registrar Accreditation Agreement (RAA) (July) — The RAA is the uniform contract that governs the relationship between accredited registrars and ICANN and also sets forth registrar responsibilities to registrants. We participated in the ICANN working group that produced this report and our comments made these key points:
– Urged swift adoption of a Registrant Rights and Responsibilities Charter.
– Supported further consideration of High Priority suggestions for RAA amendments so long as matters of cost, practicality, registrant privacy, and interface with relevant national laws are adequately addressed; and that contemplated amendments be appropriate for RAA amendment through the GNSO policy development process (PDP).
– Endorsed further consideration of proposals that proxy/privacy services promptly forward allegations of illegal conduct to registrants, and that registrars promptly advise registrants of security breaches that may have compromised their account information.
– Endorsed a process for further consideration of potential RAA amendments that would allow all members of the ICANN community to be advised of contemplated changes and have a meaningful ability to comment upon them.
Inter-Registrar Transfer Policy (August) – The main thrust of this letter was to strenuously object to adoption of the proposed Expedited Transfer Reversal Policy (ETRP).
The ERTP proposes to allow domain sellers to reverse domain transfers up to six months after they had taken place, and could therefore be extremely disruptive to the secondary domain marketplace to the detriment of both sellers and purchasers. It could also be subject to substantial abuse given the lack of effective sanctions for unjustified ETRP filings and the complete absence of any suggestions for a timely, fair and due process through which good faith domain purchasers could object to ETRP filings that they believe to be unjustified.
This is an issue that ICA will keep close watch on due to its potential for major mischief.
While no major legislation affecting domainers is moving forward to enactment as the current Congress nears the end of its second session, we are keeping an eye on Internet privacy proposals that would introduce substantial new regulation of technologies that track user behavior to serve up relevant ads. On July 31st we published a summary of the state-of-play. This is an issue that engages support from members of both major political parties, so we expect very active consideration of legislation and possible enactment in the next two-year Congressional cycle. ICA’s principal objective will be to educate the contextual advertising dynamic of monetized parked and developed generic word domains, and to make sure that domainers aren’t subject to excessive or irrelevant regulation that is targeted at over-intrusive behavioral advertising technologies.
And, of course, we’re on constant alert for any proposed changes to the ACPA, especially those that might seek to impose a Utah-style approach on the entire USA.
The Road Ahead – to UDRP Reform and other Goals
As we just observed in a long article published on August 13th at http://www.internetcommerce.org/Google-and-eBay-Keywords-and-Domains-and-ICANN , trademark law decisions issued in U.S. and European courts have been rejecting the type of arguments that have been presented to ICANN in favor of new “rights protectionsâ€ — and have okayed such activities as Google selling trademarks as keywords to competitors of the mark, and eBay operating its online auctions notwithstanding its general knowledge that counterfeit trademarked goods are being sold through its website. Courts have not been convinced that consumer confusion results from these activities, have rejected mark owners’ desire to be relieved of the burden of policing the Internet to protect their marks, and have found disclaimers and notice-and-takedown procedures to provide adequate defenses to infringement allegations.
Of course ICANN has a responsibility to protect trademark rights – but ICANN has absolutely no authority to create those rights. Those rights exists solely as a matter of legislated statutes and court interpretation, and the trends in relevant court decisions – as well as the increasing lack of consistency and uniformity in UDRP decisions, and actions by the accredited UDRP providers that encourage forum shopping – emphasize the crying need for ICANN to undertake serious UDRP reform. It is unacceptable to have trademark law move in one direction for general e-commerce and in the opposite direction for domains.
ICA is developing its detailed goals for a UDRP reform process and we’ll be detailing them down the road – and encourage you to forward your ideas. But the number one goal is to place the UDRP providers under a standard contract that lays out the limits of their powers and provides ICANN with flexible enforcement tools. It’s unbelievable that ICANN has accredited various arbitration providers to conduct procedures that can result in the loss of a highly valuable asset without exercising any continuing contractual control or oversight of their activities.
We plan to speak out in greater detail on this top ICA priority at the final ICANN meeting for 2010 slated to take place the first week of December in Cartagena, Colombia. (UDRP-reform.co!)
I hope this summary has provided DN Wire readers with an overall feel for the very broad scope of ICA activities so far in 2010. We have really big opportunities and challenges looming ahead – including UDRP reform within ICANN and online advertising regulation on Capitol Hill – and we can only tackle them with the continued support of the domain investment industry.
If you have questions or comments about any of these issues, or if you want to join ICA or make a donation, please feel free to contact me at pcorwin (at) butera-andrews.com as well as ICA President Jeremiah Johnston at jeremiah (at) sedo.com .
I hope you all enjoy the waning days of summer (or winter, if you reside below the equator).
As for you, Andrew, get some rest and recreation – you’ve earned it!