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2013 Top Stories: New TLD Objection problems

The new top level domain objection process became a sore spot on the road to new top level domain names.

ICANN and its various constituents had goals for which types of new top level domain names would find their way to the internet.

Limit controversial strings. Make sure they don’t violate trademarks at the top level. Prevent another .xxx “community” from getting a leg up. Limit confusion between strings.

This resulted in in objection procedures in the applicant guidebook that would hopefully make this happen in an orderly way.

But something went horribly, horribly wrong.

Blame part of it on how the guidelines to achieving these goals were actually written. Blame it on weak agreements with incapable arbitration groups that hired incapable panelists.

Blame it on what you want, but it was a fiasco.

While trying to achieve the general goals, a lot of innocent applicants have been ensnared in the trap. Panels made inconsistent determinations based on individual interpretation of the guidelines.

Companies have appealed to ICANN to fix the problem, although ICANN seems content to just sit on the sidelines and pretend the system is working.

It has made for a messy and controversial process. I suspect figuring it all out will extend into the second round of gTLD expansion…especially what to do if a different applicant wants to apply for one of these strings in the next round.

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  1. Constantine (.MUSIC) (@mus)

    “Blame part of it on how the guidelines to achieving these goals were actually written. Blame it on weak agreements with incapable arbitration groups that hired incapable panelists.”

    Well said Andrew!

    By the way we filed re-consideration requests on the Amazon cases. We will act accordingly to ICANN’s and the ICC’s response. Here it is: http://www.icann.org/en/groups/board/governance/reconsideration/request-dotmusic-23dec13-en.pdf (See http://www.icann.org/en/groups/board/governance/reconsideration for Annex and reconsideration requests by others).

    We have also sent the ICC and ICANN the following questions and await for a response so we can explain to our constituents how a panelist made such inaccurate statements without having any experience or qualifications on the subject matter. This is what we sent the ICC and ICANN:

    —–“We are seeking to address many questions our music community constituents are asking pertaining to the Panelist statements/arguments/Determinations and ICANN’s/ICC’s accountability on the issue.

    It is reminded that upon the selection of the Panelist Francisco Orrego Vicuna, we immediately expressed our concerns to both the ICC and ICANN that the panelist was not qualified since he was not a music expert nor had any experience in the subject matter in the cases. ICANN assured us in their response was that they were “confident” that the Panelist was qualified. According to the ICC and their role in the Appointment of an expert (Section III of the Rules), the ICC was responsible in finding an expert “suitable for the case.”

    Question 1:
    How was Francisco Orrego Vicuna “suitable” for the Amazon case(s)? He has no background as a “competition regulator” expert and no experience relating to the Music Community and its primary functions/composition.

    Question 2:
    Why didn’t the ICC select a more appropriate expert such as a competition regulator expert, or ethnomusicologist/musicologist experts or music/intellectual property experts since they were more “suitable” for this type of case?

    Question 3:
    What type of training did Francisco Orrego Vicuna receive to ensure arguments were factually correct and AGB rules were followed? As mentioned in the Re-Consideration Request he was not aware of basic rules relating to Community in the AGB such as using expressions of opposition in context and not absolute numbers. Please refer to Reconsideration Request for more detail.

    Question 4:
    Did the ICC expect the Objector to “train” the Panelist in relation to how the music community works, on its clearly delineated systems, its key definitions (independent vs major) or how it functions as a clearly delineated community in the Objection? Such a process would require significantly more words and again showcases that the process was unfair and against Objectors since the panelist’s arguments clearly revealed he had absolutely no knowledge on the subject matter nor had the qualifications as a music expert or competition regulator expert to determine these cases with such serious and pertinent subject matter.

    Question 5:
    The Panelist stated that the dependence of the community on the DNS for its core activities has not been proven (emphasis added)” (Expert Determination, Section 71, p.24). Why has the ICC allowed the Panelist to make such a factually incorrect argument that the music community is not dependent on the Internet/DNS? What kind of controls has the ICC put to ensure the factual accuracy of such arguments (which are common knowledge) when they are so clearly inaccurate?

    Can the ICC provide an accurate, factually-substantiated argument how the music community is not dependent on the DNS/internet that we could provide to our constituents?

    Question 6:
    The Panelist stated that “while an association exists of course between the gTLD applied for and the term “music”, this is by definition a generic term that might relate to music in general but not specifically to the “independent music community…” (Expert Determination, Section 66, p.24). ”
    Why has the ICC allowed the Panelist to make such a factually incorrect argument that the independent music community (in other words any music community member not signed to a major label) is not strongly associated with the word music? Can the ICC explain how music created by the independent musicians (about 99% of music created) is not significant enough to be associated to the string music? Can the ICC explain how much music will be available if the independent music community did not exist?

    Can the ICC provide an accurate, factually-substantiated argument how the independent music community is not strongly associated with “music” that we could provide to our constituents?

    Question 7:
    Can the ICC explain how the Panelist made a determination that the music community does not have a common interest (such as the distribution and promotion of music) and explain how songwriters are compensated if the community is not clearly delineated and there are no clearly delineated systems to compensate rights holders per the panelist arguments?

    We would like the ICC to explain why the Panelist ignored clearly delineated systems such as the International Standard Recording Code (ISRC) formed in 1986 for music sound and video recordings (See ISRC, http://www.usisrc.org/about/index.html), the International Standard Music Number (ISMN) formed in 1993 for printed music (See ISMN International, http://www.ismn-international.org/whatis.html), the International Standard Musical Work Code (ISWC) formed in 2001 for musical works (See ISWC International Agency, http://www.iswc.org/), the Global Release Identifier (GRid) System for digital music distribution (See International Federation of Phonographic Industry (IFPI), http://www.ifpi.org/content/section_resources/grid.html). These delineated systems ensure that individual music is uniquely identified and attributed to individual members of the Music Community in a highly organized and structured manner including common, shared methods of royalty identification and allocation to compensate Music Community rights holders. Did the ICC expect for the Objector to explain to the “expert” how the music community functions and go in detail in regards to these delineated systems in the limited space allowed?

    Can the ICC provide an accurate, factually-substantiated argument how individual music community members are compensated if there are no clearly delineated systems in place that we could provide to our constituents?

    Question 8:
    Why did the Panelist did not regard Amazon’s change of position and admission of guilt through its response to GAC Category 2 Advice as “exceptional”? Why did the Panelist reject the Objector’s “Additional Submission” which provided concrete evidence which he claimed in his Determination we did not provide? How is GAC Advice and new NGPC Resolutions pertaining to exclusive access – and a revision to the registry agreement to exclude exclusive access language – not “exceptional” according to the Panelist? And in light of such overwhelming evidence how can a reasonable Panelist dismiss the Objections?

    Can the ICC provide an accurate, factually-substantiated argument how an objected-to Applicant changing their position is not “exceptional” and how the Panelist could possibly rule in their favor given such evidence that we could provide to our constituents?

    Question 9:
    The ICC stated that the Panelist had the power to re-open any case (e.g if there are exceptional changes in the program e.g GAC advice, NGPC resolutions – or a change of position by objected-to Applicant). Why did the panelist not consider such overwhelming evidence and why did he state he was not allowed to re-open the case per the rules while the ICC stated that the panelist had the power to do so?

    Question 10:
    As per the rules, the ICC does not have any responsibility in the Determination made by the Panel but the ICC is responsible for ensuring the Determination is clear, accurate and based on irrefutable facts, not inaccurate, unsubstantiated arguments/statements. As such, is the ICC responsible and accountable that the Determination is clear, accurate and based on irrefutable facts, not inaccurate, unsubstantiated arguments/statements?”——

    Having one unqualified panelist to determine the fate of such decisions is irresponsible and dangerous given the amount of monies and resources that were consumed by this process.

    Would a reasonable person believe that the Objections had any chance of dismissal if I were to tell you that Amazon had to prove that:
    (i) the music community does not rely on the DNS/internet for core activities
    (ii) that the independent music community is not strongly associated with music, and
    (iii) that the music community does not use strictly delineated systems for individual songs to compensate individual rights-holders?

    Would a reasonable person believe that the Objections had any chance of dismissal if I were to tell you that Amazon made a position change from exclusive to non-exclusive in its response to GAC Category 2 advice DURING a proceeding and also ICANN itself changing the new registry agreement to remove language pertaining to exclusive access?

    I think the word “problems” in your subject-title is an understatement. We are holding the “incapable” panelist, ICANN and the ICC accountable and responsible especially given the excessive costs of this process, its impact and the low quality of service received.

    Happy New Year!

    Constantine Roussos
    .MUSIC

    • Rubens Kuhl

      Too bad string confusion objections and community objections lacked the option of a 3-member panel, while legal rights objections could be 1 or 3 and limited public interest there were always 3. I don’t see a good reason to cap the number of panelists differently.

      • Constantine (.MUSIC) (@mus)

        Rubens,

        Much agreed on your sentiments on the 3-person panel.

        The Community Objections did have the option of a 3-person panel. The problem was that it would encompass paying nearly THREE times the amount in comparison to the 1-person panel. It was excessively costly for a 1-person panel as it was. For a 3-person panel, the total costs would have been in the MULTIPLE of millions especially if you multiply it by the number of Objections filed.

        The Independent Objector selected a 3-person panel in both his Community Objections and Limited Public Interest objections because ICANN (or may I say the Internet community of domain registrants i.e us) paid those bills. Each time the Independent Objector lost a case, then ICANN (or registrants who pay ICANN’s bills) had to pay the 3-person Panel for the case being dismissed.

        We would have preferred a 3-person panel. However, at some point you have to ask yourself whether any community – composed of support from primarily non-for profit organizations/associations – (i.e not a multi-billion dollar /publicly traded corporations or venture-capital backed entities) are able to pay such fees. From the Independent Objector’s point of view, it was “free” money from ICANN so it was obvious why he selected a 3-person panel in the Limited Public Interest or Community Objections: A 3-person panel would have a better shot of a more reasoned determination. In other words, the likelihood of false and inaccurate statements such as the music community does not depend on the DNS for core activities or that independent music is not strongly associated with the word music would not have occurred.

        Just a shame given the resources and monies spent by both the Objectors and the objected-to Applicants. ICANN should have intervened and its inaction might come back to haunt them in the end since it has become apparently clear that the entire new gTLD Program has turned into the wild wild west. I sometimes wonder if ICANN’s accountability has taken a vacation to Mars.

        Constantine Roussos
        .MUSIC

        • Rubens Kuhl

          It’s curious that the guidebook only mentioned 1-member panels for community objections:

          Article 13. The Panel
          (a) The DRSP shall select and appoint the Panel of Expert(s) within thirty (30) days after
          receiving the Response.
          (b) Number and specific qualifications of Expert(s):
          (i) There shall be one Expert in proceedings involving a String Confusion Objection.
          (ii) There shall be one Expert or, if all of the Parties so agree, three Experts with relevant experience in intellectual property rights disputes in proceedings involving an Existing Legal Rights Objection.
          (iii) There shall be three Experts recognized as eminent jurists of international reputation, one of whom shall be designated as the Chair. The Chair shall be of a nationality different from the nationalities of the Applicant and of the Objector, in proceedings involving a Limited Public Interest Objection.
          (iv) There shall be one Expert in proceedings involving a Community Objection.

          I was only at the receiving side of an string confusion objection, not on either sides of community objections, and we although we prevailed, we would have preferred a 3-member panel.

  2. John Poole

    You cannot rely on ICANN for competence, rationality, or a stable domain name system anymore. It is driven by its own myopic bureaucracy, special interests, and greed. Domain investors, at every level, particularly those used to governments with due process, rule of law, and accountability, should wake up to the new internet governance reality – an inconsistent, capricious, arbitrary, and highly unstable environment. There is also a good chance that ICANN, as we know it, will cease to exist within 2-3 years, replaced by the ITU or some other UN or multi-national (governmental) organization. If you buy one of the new gTLDs domain names, better check everything out — the registry, all terms, conditions, agreements with ICANN, what national jurisdictional law controls, etc. Otherwise, you might be buying the equivalent of a plot of land in North Korea.

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