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Sanchez beats Greenberg to ICANN board seat

Kevin Murphy, February 27, 2017, Domain Policy

Mexican intellectual property lawyer León Felipe Sánchez Ambía has been selected to become a member of the ICANN board of directors by the At-Large, comfortably beating his opponent in a poll this weekend.

Sanchez took 13 votes (65%) to 10-year At-Large veteran Alan Greenberg’s 7, in a vote of At-Large Advisory Committee members and Regional At Large Organization chairs.

He’ll take the seat due to be vacated in November by Rinalia Abdul Rahim, who will leave the board after one three-year term.

He’s currently head of the IP practice and a partner at Fulton & Fulton in Mexico City. According to his bio:

He is co-lead for the Mexican chapter of Creative Commons and advisor to different Government bodies that include the Digital Strategy Coordination Office of the Mexican Presidency, the Special Commission on Digital Agenda and IT of the Mexican House of Representatives and the Science and Technology Commission of the Mexican Senate.

He drafted the Internet Users Rights Protection Act for Mexico and has been very active on issues like Anti-Counterfeit Trade Agreement (ACTA), Stop Online Privacy Act (SOPA), Trans-Pacific Partnership Agreement (TPPA) and other local initiatives of the same kind, always advocating to defend users’ and creators’ rights in order to achieve a balance between regulation and freedom.

Sanchez is certainly the less experienced of the two short-listed men when it comes to length of involvement in the ICANN community, but he’s a member of the ALAC and is deeply involved as a volunteer in ICANN accountability work following the IANA transition.

The At-Large was recently criticized in a report (pdf) for the perception that it is “controlled by a handful of ICANN veterans who rotate between the different leadership positions”.

Sanchez’s appointment to the board may have an effect on that perception.

The selection of another (white, male) North American to the board, replacing an Asian woman, will of course create more pressure to increase geographic and gender diversity on the other groups within ICANN that select board members.

A written Q&A between the two candidates and At-Large members can be found here.

Now the DNA backpedals on “Copyright UDRP”

Kevin Murphy, February 27, 2017, Domain Policy

The Domain Name Association has distanced itself from the Copyright ADRP, a key component of its Healthy Domains Initiative, after controversy.

The anti-piracy measure would have given copyright owners a process to seize or suspend domain names being used for massive-scale piracy, but it appears now to have been indefinitely shelved.

The DNA said late Friday that it has “elected to take additional time to consider the details” of the process, which many of us have been describing as “UDRP for Copyright”.

The statement came a day after .org’s Public Interest Registry announced that it was “pausing” its plan for a Systemic Copyright Infringement Alternative Dispute Resolution Policy modeled on UDRP.

PIR was the primary pen-holder on the DNA’s Copyright ADRP and the only registry to publicly state that it intended to implement it.

It’s my view that the system was largely created as a way to get rid of the thepiratebay.org, an unwelcome presence in the .org zone for years, without PIR having to take unilateral action.

The DNA’s latest statement does not state outright that the Copyright ADRP is off the table, but the organization has deleted references to it on its HDI web page page.

The HDI “healthy practices” recommendations continue to include advice to registries and registrars on handling malware, child abuse material and fake pharmaceuticals sites.

In the statement, the DNA says:

some have characterized [Copyright ADRP] as a needless concession to ill-intentioned corporate interests, represents “shadow regulation” or is a slippery slope toward greater third party control of content on the Internet.

While the ADR of course is none of these, the DNA’s concern is that worries over these seven recommendations have overshadowed the value of the remaining 30. While addressing this and other illegalities is a priority for HDI, we heard and listened to various feedback, and have elected to take additional time to consider the details of the ADR recommendations.

Thus, the DNA will take keen interest in any registrar’s or registry’s design and implementation of a copyright ADR, and will monitor its implementation and efficacy before refining its recommendations further.

The copyright proposal had been opposed by the Electronic Frontier Foundation, the Internet Commerce Association and other members of ICANN’s Non-Contracted Parties House.

In a blog post over the weekend, ICA counsel Phil Corwin wrote that he believed the proposal pretty much dead and the issue of using domains to enforce copyright politically untouchable:

While the PRI and DNA statements both leave open the possibility that they might revive development of the Copyright UDRP at some future time, our understanding is that there are no plans to do so. Further, notwithstanding the last sentence of the DNA’s statement, we believe that it is highly unlikely that any individual registrar or registry would advance such a DRP on its own without the protective endorsement of an umbrella trade association, or a multistakeholder organization like ICANN. Ever since the U.S. Congress abandoned the Stop Online Privacy Act (SOPA) in January 2012 after millions of protesting calls and emails flooded Capitol Hill, it has been clear that copyright enforcement is the third rail of Internet policy.

PIR slams brakes on “UDRP for copyright”

Kevin Murphy, February 24, 2017, Domain Policy

Public Interest Registry has “paused” its plan to allow copyright owners to seize .org domains used for piracy.

In a statement last night, PIR said the plans were being shelved in response to publicly expressed concerns.

The Systemic Copyright Infringement Alternative Dispute Resolution Policy was an in-house development, but had made its way into the Domain Name Association’s recently revealed “healthy practices” document, where it known as Copyright ADRP.

The process was to be modeled on UDRP and similarly priced, with Forum providing arbitration services. The key difference was that instead of trademark infringement in the domain, it dealt with copyright infringement on the associated web site.

PIR general counsel Liz Finberg had told us the standard for losing a domain would be “clear and convincing evidence” of “pervasive and systemic copyright infringement”.

Losers would either have their domain suspended or, like UDRP, seized by the complainant.

The system seemed to be tailor-made to give PIR a way to get thepiratebay.org taken down without violating the owner’s due process rights.

But the the announcement of Copyright ADRP drew an angry response from groups representing domain investors and free speech rights.

The Electronic Frontier Foundation said the system would be captured by the music and movie industries, and compared it to the failed Stop Online Piracy Act (SOPA) in the US.

The Internet Commerce Association warned that privatized take-down policies at registries opened the door for ICANN to be circumvented when IP interests don’t get what they want from the multi-stakeholder process.

I understand that members of ICANN’s Non-Contracted Parties House was on the verge of formally requesting PIR pause the program pending a wider consultation.

Some or all of these concerns appear to have hit home, with PIR issuing the following brief statement last night:

Over the past year, Public Interest Registry has been developing a highly focused policy that addresses systemic, large scale copyright infringement – the ”Systemic Copyright Infringement Alternative Dispute Resolution Policy” or SCDRP.

Given certain concerns that have been recently raised in the public domain, Public Interest Registry is pausing its SCDRP development process to reflect on those concerns and consider forward steps. We will hold any further development of the SCDRP until further notice.

SCDRP was described in general terms in the DNA’s latest Healthy Domains Initiative proposals, but PIR is the only registry to so far publicly express an interest in implementing such a measure.

Copyright ADRP may not be dead yet, but its future does not look bright.

UPDATE: This post was updated 2/26 to clarify that it was only “some members” of the NCPH that were intending to protest the Copyright ADRP.

Angry reactions to “UDRP for copyright”

Kevin Murphy, February 10, 2017, Domain Policy

The Electronic Frontier Foundation and Internet Commerce Association are among those expressing initial concern about the introduction of a new “UDRP for copyright” mechanism by the Domain Name Association.

The EFF said the DNA’s new proposals want registries to become “private arbiters of online speech”, while the ICA expressed concern that the proposals could circumvent the usual ICANN policy-making process.

As we reported earlier in the week, the DNA has set out a set of four “healthy practices” (the term “best practices” was deliberately avoided, I’m told) for registries and registrars, under the banner of its Healthy Domains Initiative.

The first three sets of recommendations cover malware, child abuse material and fake pharmacies and are relatively non-controversial.

However, the surprising fourth proposal seeks to give copyright holders a means to suspend or seize control of domain names where they have “clear and convincing evidence” of “pervasive and systemic copyright infringement”.

While the details have yet to be finalized, it appears to be targeted at sites such as The Pirate Bay, which are used for pretty much nothing but copyright infringement.

“This is a terrible proposal,” the EFF’s Jeremy Malcolm and Mitch Stoltz wrote yesterday:

The content that happens to be posted within [a] website or service has nothing to do with the domain name registrar, and frankly, is none of its business. If a website is hosting unlawful content, then it is the website host, not the domain registrar, who needs to take responsibility for that

They added:

it seems too likely that any voluntary, private dispute resolution system paid for by the complaining parties will be captured by copyright holders and become a privatized version of the failed Internet censorship bills SOPA and PIPA

Those are references to two proposed US laws, the Stop Online Piracy Act and Protect IP Act, that attracted lots of criticism and never saw the light of day.

The ICA, in a separate post on its own site, expressed concerns that private initiatives such as the HDI could give trademark holders another way to route around ICANN policies they do not like.

Noting that trademark protection mechanisms are already under review in a ICANN working group, ICA counsel Phil Corwin wrote:

What if the final consensus decision of that WG is that the URS remedy should remain domain suspension and not transfer, or that the UDRP standard of “bad faith registration and use” should remain as is? Are TM owners then free to develop their own “best practices” that include domain transfer via URS, or a bad faith registration or use standard? What’s the point of going through a multi-year exercise if those dissatisfied with the result can seek stiffer private policies? Just how many bites at the apple should trademark holders get

Both ICA and EFF expressed concern that the new DNA proposals seemed to have been developed without the broad input of members.

Stoltz and Malcolm wrote:

In any purported effort to develop a set of community-based principles, a failure to proactively reach out to affected stakeholders, especially if they have already expressed interest, exposes the effort as a sham.

Corwin wrote:

ICA had no advance knowledge of the details of HDI and no opportunity to provide substantive input. So our fingerprints are nowhere on it.

The Copyright ADRP proposal appears to be the brainchild of Public Interest Registry, the .org registry.

PIR general counsel Liz Finberg told DI earlier this week that PIR is working with arbitration provider Forum to finalize the rules of the process and hopes to implement it in .org before the end of the first quarter.

No other registry has publicly stated similar plans to my knowledge.

The HDI recommendations are completely voluntary and registries/ars are free to adopt them wholly, partially or not at all. They are not ICANN policies.

.africa to finally go live after judge denies injunction

Kevin Murphy, February 10, 2017, Domain Policy

A Los Angeles court has rejected a demand for a preliminary injunction preventing ICANN delegating .africa, meaning the new gTLD can go live soon.

Judge Howard Halm ruled February 3, in documents published last night, that the “covenant not to sue” signed by every new gTLD applicant is enforceable and that Africans are being harmed as long as .africa is stuck in legal limbo.

The ruling comes two and a half years after ZA Central Registry, the successful of the two .africa applicants, signed its Registry Agreement with ICANN.

Rival applicant DotConnectAfrica, rejected because it has no African government support, is suing ICANN for fraud, alleging that it failed to follow its own rules and unfairly favored ZACR from the outset.

Unfortunately, the ruling does not address the merits of these claims. It merely says that DCA is unlikely to win its suit due to the covenant it signed.

Halm based his decision on the precedent in Ruby Glen v ICANN, the Donuts lawsuit that seeks to stop ICANN awarding .web to Verisign. The judge in that case ruled last November that Donuts signed away its right to sue.

An earlier judge in the DCA v ICANN case had ruled — based at least in part on a misunderstanding of the facts — that the covenant was unenforceable, but that decision now seems to have been brushed aside.

Halm was not convinced that DCA would suffer irreparable harm if ZACR got given .africa, writing:

The .Africa gTLD can be re-delegated to DCA in the event DCA prevails in this litigation… Further, it appears that any interim harm to DCA can be remedied by monetary damages

He balanced this against the harm of NOT delegating .africa:

The public interest also weighs in favor of denying the injunction because the delay in the delegation of the .Africa gTLD is depriving the people of Africa of having their own unique gTLD.

So what now?

ICANN said in a statement: “In accordance with the terms of its Registry Agreement with ZACR for .AFRICA, ICANN will now follow its normal processes towards delegation.”

As of this morning, ZACR’s .africa bid is officially still marked as “On Hold” by ICANN, though this is likely to change shortly.

Assuming ZACR has already completed pre-delegation testing, delegation itself could be less than a week away.

If DCA’s record is anything to go by, it seems unlikely that this latest setback will be enough to get it to abandon its cause.

Its usual MO whenever it receives an adverse decision or criticism is to double down and start screaming about conspiracies.

While the injunction was denied, the lawsuit itself has not been thrown out, so there’s still plenty of time for more of that.

You can read Halm’s ruling here (pdf).