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ICANN tells Congressmen to chillax

Kevin Murphy, January 25, 2012, Domain Policy

ICANN senior vice president Kurt Pritz has replied in writing to great big list of questions posed by US Congressmen following the two hearings into new gTLDs last month.

The answers do what the format of the Congressional hearings made impossible – provide a detailed explanation, with links, of why ICANN is doing what it’s doing.

The 27-page letter (pdf), which addresses questions posed by Reps. Waxman, Eshoo and Dingell, goes over some ground you may find very familiar, if you’ve been paying attention.

These are some of the questions and answers I found particularly interesting.

Why are you doing this?

Pritz gives an overview of the convoluted ICANN process responsible for conceiving, creating and honing the new gTLD program over the last few years.

It explains, for example, that the original GNSO Council vote, which set the wheels in motion back in late 2007, was 19-1 in favor of introducing new gTLDs.

The “lone dissenting vote”, Pritz notes, was cast by a Non-Commercial Users Constituency member – it was Robin Gross of IP Justice – who felt the program had too many restrictions.

The letter does not mention that three Council members – one from the Intellectual Property Constituency and two more from the NCUC – abstained from the vote.

Why aren’t the trademark protection mechanisms finished yet?

The main concern here is the Trademark Clearinghouse.

New gTLD applicants will not find out how the Clearinghouse will operate until March at the earliest, which is cutting it fine considering the deadline for registering as an applicant is March 29.

Pritz, however, tells the Congressmen that applicants have known all they need to know about the Clearinghouse since ICANN approved the program’s launch last June.

The Clearinghouse is a detail that ideally should have been sorted out before the program launched, but I don’t believe it’s the foremost concern for most applicants or trademark owners.

The unresolved detail nobody seems to be asking about is the cost of a Uniform Rapid Suspension complaint, the mechanism to quickly take down infringing second-level domain names.

ICANN has said that it expects the price of URS – which involves paying an intellectual property lawyer to preside over the case – to be $300 to $500, but I don’t know anyone who believes that this will be possible.

Indeed, one of the questions asked by Rep. Waxman starts with the premise “Leading providers under Uniform Dispute Resolution Policy (UDRP) have complained that current fees collected are inadequate to cover the costs of retaining qualified trademark attorneys.”

UDRP fees usually start at around $1,000, double what ICANN expects the URS – which I don’t think is going to be a heck of a lot simpler for arbitration panels to process – to cost trademark owners.

Why isn’t the Trademark Claims service permanent?

The Trademark Claims service is a mandatory trademark protection mechanism. One of its functions is to alert trademark holders when somebody tries to register their mark in a new gTLD.

It’s only mandatory for the first 60 days following the launch of a new gTLD, but I’m in agreement with the IP community here – in an ideal world, it would be permanent.

However, commercial services already exist that do pretty much the same thing, and ICANN doesn’t want to anoint a monopoly provider to start competing with its stakeholders. As Pritz put it:

“IP Watch” services are already provided by private firms, and it was not necessary for the rights protection mechanisms specific to the New gTLD Program to compete with those ongoing watch services already available.

In other words, brands are going to have to carry on paying if they want the ongoing benefits of an infringement notification service in new gTLDs.

When’s the second round?

Nothing new here. Pritz explains why the date for the second round has not been named yet.

Essentially, it’s a combination of not knowing how big the first round is going to be and not knowing how long it will take to conduct the two (or three) post-first-round reviews that ICANN has promised to the Governmental Advisory Committee.

I tackle the issue of second-round timing in considerable detail on DomainIncite PRO. My feeling is 2015.

On Whois verification

Pritz reiterates what ICANN CEO Rod Beckstrom told the Department of Commerce last week: ICANN expects that many registrars will start to verify their customers’ Whois data this year.

ICANN is currently talking to registrars about a new Registrar Accreditation Agreement that would mandate some unspecified degree of Whois verification.

This issue is at the top of the law enforcement wish list, and it was taken up with gusto by the Governmental Advisory Committee at the Dakar meeting in October.

Pritz wrote:

ICANN is currently in negotiations with its accredited registrars over amendments to the Registrar Accreditation Agreement. ICANN is negotiating amendments regarding to the verification of Whois data, and expects its accredited registrars to take action to meet the rising call for verification of data. ICANN expects that the RAA will incorporate – for the first time – Registrar commitments to verify Whois data.

He said ICANN expects to post the amendments for comment before the Costa Rica meeting in mid-March, and the measures would be in place before the first new gTLDs launch in 2013.

I’ve heard from a few registrars with knowledge of these talks that Whois verification mandates may be far from a dead-cert in the new RAA.

But by publicly stating to government, twice now, that Whois verification is expected, the registrars are under increased pressure to make it happen.

IF Whois verification is not among the RAA amendments, expect the registrars to get another dressing down from the GAC at the Costa Rica meeting this March.

On the other hand, ICANN has arguably handed them some negotiating leverage when it comes to extracting concessions, such as reduced fees.

The registrars were prodded into these talks with the GAC stick, the big question now is what kind of carrots they will be offered to adopt an RAA that will certainly raise their costs.

ICANN expects to post the proposed RAA changes for public comment by February 20.

Congressmen ask ICANN to delay new gTLDs

Kevin Murphy, December 22, 2011, Domain Policy

Seventeen US Congressmen have put their names to a letter asking ICANN to delay its new generic top-level domains program.

The bipartisan group was led by Rep. Fred Upton, chairman of the House technology subcommittee that held a hearing into new gTLDs last week. They wrote:

Although we believe expanding gTLDs is a worthy goal that may lead to increased competition on the Internet, we are very concerned that there is a significant uncertainty in this process for businesses, non-profit organizations, and consumers. To that end, we urge you to delay the planned January 12, 2012 date for the acceptance of applications for new gTLDs.

The letter (pdf), sent yesterday to ICANN president Rod Beckstrom and chairman Steve Crocker, goes on to note the objections of several groups, including the Coalition for Responsible Internet Domain Oversight, that have opposed the program in recent weeks.

Given these widespread concerns, a short delay will allow interested parties to work with ICANN and offer changes to alleviate many of them, specifically concerns over law enforcement, cost and transparency that were discussed in recent Congressional hearings.

It is notable that the letter was sent directly to ICANN’s top brass.

Previous requests of this kind have been sent to ICANN’s overseers in the US Department of Commerce, which has already indicated that it does not intend to strong-arm ICANN into changing its new gTLD plans.

ICANN’s senior vice president Kurt Pritz said last week that the chance of delay was “above zero”.

Whether this latest letter changes the math remains to be seen.

Opposition to the January 12 launch date in the US currently appears to be reaching a critical mass.

New gTLD industry pleads with senators

Kevin Murphy, December 22, 2011, Domain Policy

Twenty-eight domain name industry players have written to two influential US senators in support of ICANN’s new generic top-level domains program.

Calling it “innovative and economically beneficial”, the letter takes issue with third-party claims that the program was “rushed”, pointing out that it took a long time and lots of people to develop.

Since the formation of the multi-stakeholder Internet governance, no process has been as inclusive, and no level of outreach has been as far-reaching as the one facilitating discussion of namespace expansion.

While new gTLDs will experience different levels of end-user adoption, we optimistically anticipate the useful possibilities for new services and applications from the namespace, the positive economic impact in the United States and globally, the inclusion of developing nations in Internet growth and development, and the realization of the hard work and preparation of the thousands of interested stakeholders dedicated not only to their own interests, but that of the global Internet.

The letter (pdf) was signed almost exclusively by registrars, registries, applicants and consultants; with one or two possible exceptions, all companies that stand to make money from new gTLDs.

It was sent to Sen. Jay Rockefeller and Sen. Kay Bailey Hutchison, chair and ranking member of the Senate Commerce, Science and Transportation Committee.

That committee held a hearing into new gTLDs two weeks ago during which Rockefeller expressed cautious support for the concept, saying he was in favor of competition.

The letter is dated December 8, the day of the Senate hearing.

A similar hearing in the House of Representatives last week resulted in two Congressmen sending a letter (pdf) to the Department of Commerce requesting a delay to the program.

Chance of new gTLD delay “above zero”

Kevin Murphy, December 20, 2011, Domain Policy

ICANN has not completely ruled out the possibility that its new generic top-level domains program will be delayed, according to senior vice president Kurt Pritz.

Pritz was asked during a meeting of the GNSO Council last week whether the recent Congressional hearings into new gTLDs could lead to a delay of the January 12 launch.

“I think the risk is above zero,” Pritz said.

An “above zero” risk of delay could still mean a very small risk, of course.

He went on to point out that “the reputation of the multi-stakeholder model is wrapped up in this too”, and that to delay would be a disservice to all the people who have worked on the program.

He noted that the National Telecommunications and Information Administration assistant secretary Larry Strickling has come out in strong support of the multi-stakeholder model.

While the NTIA does not plan to enforce a delay, ICANN itself could make the decision under political pressure from elsewhere in the US, such as from Congress or the Federal Trade Commission.

Pritz faced a rough ride during a House Energy and Commerce Committee hearing last week, during which a number of Congressmen said they believed delay was appropriate.

The committee was largely concerned about the possible costs to trademark holders and implications for law enforcement agencies.

The hearing was called following lobbying by the Association of National Advertisers and the Coalition for Responsible Internet Domain Oversight.

Congressmen ask for new gTLDs delay

Kevin Murphy, December 14, 2011, Domain Policy

ICANN should consider delaying the launch of its new top-level domains program, a number of US lawmakers said at a House of Representatives committee hearing today.

If the Senate’s hearing on new gTLDs last week could be characterized as a “win” for ICANN, today’s House meeting probably went in favor of its adversaries in the Association of National Advertisers.

“I don’t think it’s ready for prime time,” Rep. Anna Eshoo said during the Energy & Commerce Committee hearing. “I suggest that it is delayed until consensus is developed among relevant stakeholders.”

That’s exactly what the ANA and the Coalition for Responsible Internet Domain Oversight wanted to hear, and her views were echoed by several other Congresspeople, using similar language.

ICANN’s senior vice president Kurt Pritz, who was put forward to defend the new gTLD program in Washington DC for the second consecutive week, disagreed.

“This process has not been rushed, it’s been seven years in the making,” he said. “All the issues have been discussed and no new issues have been raised.”

National Telecommunications and Information Administration associate administrator Fiona Alexander, there to defend the ICANN process if not its results, observed that “consensus” does not necessarily always mean “unanimity”.

The hearing also heard from Josh Bourne of the Coalition Against Domain Name Abuse, a long-time critic of ICANN and new gTLDs.

CADNA has recently taken a more pragmatic view of the program, coinciding with sister group Fairwinds Partners’ decision to emerge as a new gTLD consultancy.

Bourne therefore found himself not only defending the program but also praising .xxx, saying that its novel trademark protection mechanisms should be mandatory in new gTLDs.

CADNA’s main demand nowadays is for clarity into the dates of subsequent application rounds, which Bourne said would relieve the “condition of scarcity” that the uncertainty has created.

Bourne also said that Congress could fight fraud by revising the the 12-year-old US Anticybersquatting Consumer Protection Act.

Also on the panel as an opponent of the program was Anjali Hansen, an IP attorney with the Better Business Bureau, who came to complain about the cost of defending the “BBB” trademark.

Hansen’s testimony was essentially worthless. When she was not complaining about fraudsters infringing copyright on BBB’s logo (obviously irrelevant in the context of domains) she seemed to be claiming that the Better Business Bureau has exclusive rights to the string “BBB”.

As Pritz noted later, there are 50 registered trademarks for “BBB” – I’ve counted about 18 live ones in the US alone – and any one of those trademark owners would be able to object to .bbb.

There was also substantial confusion about the state of the program. Congressmen conflated separate controversies in order to support the view that new gTLDs should be delayed.

As I’ve noted before, there’s a worrying lack of detail on certain outstanding issues – such as continuity funding requirements – but Congressmen had evidently been fed different talking points and therefore peppered Pritz with questions about the state of ICANN’s negotiations to amend the Registrar Accreditation Agreement, an unrelated matter.

If two themes could be said to have emerged from the hearing, and last week’s Senate hearing, often expressed by the same Congressmen or witnesses, I’d say they were:

First, ICANN should make it harder for criminals to abuse new gTLDs.

Second, ICANN should make it cheaper and easier to obtain new gTLDs.

I would point out that a certain degree of doublethink is required to hold both positions true, but to do so would imply that the necessary singlethink had been done already.